K & M Machine Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1966

162 N.L.R.B. 83 (N.L.R.B. 1966)

K & M MACHINE COMPANY, INC. 83
K & M Machine Company, Inc. and Desoto Lodge No. 3, Interna-
tional Association of Machinists and Aerospace Workers, AFL-
CIO. Case 26-CA-.303. December 14, 1966
DECISION AND ORDER
On July 14, 1966, Trial Examiner Samuel Ross issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
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 brief, and hereby adopts
the Trial Examiner's findings,' conclusions,z and recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]
'These findings and conclusions are based, in part, upon credibility determinations of
the Trial Examiner, to which the Respondent has excepted, alleging that the Trial Examiner
was biased and prejudiced. After a careful review of the record, we conclude that the Trial
Examiner's credibility findings are not contrary to the clear preponderance of all the
relevant evidence. Accordingly, we find no basis for disturbing those findings. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We reject the charge of
bias and prejudice on the part of the Trial Examiner.
2 In adopting the Trial Examiner's 8(a) (3) findings, as we are satisfied that the record
amply demonstrates that the layoffs were motivated by employee organizational activity, we
deem immaterial Respondent's contention that it did not receive the Union's demand for
recognition until after the decision to make the layoff had been effected.
We wish also to note that the Trial Examiner inadvertently states that Respondent's
1964 Federal income tax payment was due in May 1964 but deferred until October 11, 1964,
when in fact Respondent had no Federal income tax liability for that year, but actually
delayed payment of State franchise and excise taxes through the period in question. How-
ever, the reference to Federal rather than State taxes does not affect the validity of the
Trial Examiner's reasoning.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 14, 1966 , and an amended charge filed on
March 2, 1966, by Desoto Lodge No. 3 , International Association of Machinists
and Aerospace Workers, AFL-CIO (herein called the Union ), the General Coun-
sel of the National Labor Relations Board issued a complaint on March 4, 1966,
162 NLRB No. 9.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended on March 16 and April 13, 1966, alleging that K & M Machine Company,
Inc., herein called Respondent, engaged in unfair labor practices within the mean-
ing of Section 8(a)(1), (2), (3), and (5) of the Act. The Respondent filed an
answer to the complaint denying the commission of unfair labor practices.
Pursuant to due notice, a hearing was held in Memphis, Tennessee, on April 26,
27, and 28, 1966, before Trial Examiner Samuel Ross. Upon the entire record in
the case,' and my observation of the witnesses and their demeanor, and after due
consideration of the briefs filed on behalf of the General Counsel and the Respond-
ent, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a Tennessee corporation whose office and principal place of
business is located in Memphis, Tennessee, is engaged in the business of manufac-
turing and selling automatic food-processing machines. In the conduct of said busi-
ness, the Respondent during the past 12 months purchased and received at its plant
in Memphis, Tennessee, directly from places located outside the State of Tennessee,
products and materials valued in excess of $50,000, and sold and shipped manu-
factured products valued in excess of that amount to customers located outside the
State of Tennessee.
Upon the foregoing admitted facts it is found that the Respondent is engaged in
commerce and in operations affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background, sequence of events, and the issues
The Respondent has been in business since 1954. It manufactures automatic pie-
and tart-baking machines, mostly custom built to meet the particular specifications
of its customers. In November 1963 a sister lodge of the Union 2 filed a petition
with the Board for certification as the collective-bargaining representative of the
Respondent's production and maintenance employees. However, it was unsuccessful
at the Board election held on December 20, 1963.3
On July 14 and 15, 1965,4 9 of the 10 production and maintenance employees of
Respondent signed cards authorizing the Union to act as their "collective bargain-
ing agent ." 5 On July 23, the Respondent's employees were scheduled to attend a
union meeting after work at the office of C. R. Mason, the Union's business repre-
sentative in the Memphis area. Immediately after learning about the scheduled
union meeting, Respondent's president, M. F. Keathley, Sr., called a meeting of the
employees in his office.
The complaint alleges that just before the meeting, Respondent's plant super-
intendent, Artez Mainers, unlawfully interrogated an employee regarding his views
about the Union, and that at the meeting, President Keathley similarly interrogated
employees. The complaint also alleges that at the meeting, Keathley threatened to
close the plant rather than deal with the Union, promised employees reclassification
and wage increases, promoted one employee to foreman, and initiated and sponsored
a shop committee of the employees, all in order to defeat the Union.
On July 26, the Respondent gave raises to seven of its employees. Nevertheless
seven of the nine remaining employees in the production and maintenance unit
signed applications for membership in the Union between July 26 and 29. On
July 29, the Union , by registered letter, demanded recognition and bargaining and
offered to prove its majority by a card check. The Union's letter was received by
Respondent on July 30 . On the same day, Respondent notified all of its employees
1 On June 1, 1966, after the hearing closed, the parties stipulated to the inclusion in the
record of certain additional payroll records which have been received and designated Trial
Examiner 's Exhibits A, B, C, and D.
2 Talbot Lodge No. 61.
$ Case 26-RC-2090.
4 All dates hereinafter refer to 1965, unless otherwise noted.
5 The tenth employee , Charles R . Tapley, signed an authorization card for the Union on
July 26.
K & M MACHINE COMPANY, INC. 85
in the unit that they were being laid off for lack of work. The Respondent never
answered the Union's recognition demand. The complaint alleges that the layoff of
all the employees was motivated by their union activities, and that the Respondent
failed and refused to bargain with the Union although the latter was the majority
representative of its employees.
B. Interrogation of employee Maynard regarding his views about the Union
On the afternoon of July 23, Plant Superintendent Artez Mainers and employee
Alvin C. Maynard were working for Respondent at the premises of Progressive Food
Company, a wholesale bakery located just behind the Respondent's plant which is
wholly owned by Respondent's President M. F. Keathley, Sr.6 About 3 p.m. that
day, Mainers received a telephone call at Progressive from Mrs. Ruth Wagner, the
Respondent's bookkeeper, secretary, and office manager. She advised Mainers that
she had learned from employee W. E. Nixon that Respondent's employees were
scheduled to attend a union meeting that evening. Mainers, according to his own
admission, was "upset" and "shocked" that the employees were "discontented."
Thereupon, according to the credited testimony of Maynard, Mainers told Maynard
that "he had learned by the grapevine that the boys were trying to form a union,"
and asked Maynard what his views were concerning the Union. Maynard at first
pretended that he did not know what Mainers was talking about, but when Mainers
persisted, Maynard told him that it "was none of his concern, [that] it was my
[Maynard's] personal business, that I had no right to dictate company policy, and
he had no right to question me concerning my union activities." 7
C. The July 23 meeting of President Keathley with Respondent's employees
Shortly after Mainers interrogated Maynard, President Keathley came over to the
premises of Progressive, and Mainers told him what Wagner had reported regarding
the scheduled union meeting of the employees that evening. Thereupon, about
3:30 p.m. all of the Respondent's employees who were working that day were
instructed to stop work and to go to President Keathley's office to attend a
meeting.8
There is considerable conflict in the testimony regarding what occurred at this
meeting, and as to the sequence in which events transpired. All of the persons who
attended this meeting testified at the hearing. One, W. E. Nixon, testified that he had
no recollection whatsoever of what transpired. Others admittedly could not recall
all of what was said or happened. However, except for minor variances undoubtedly
ascribable to faulty memories, substantially one version was testified to by the four
employees who were laid off after this meeting and were not reinstated,9 and quite
another by Keathley, his plant superintendent, and the three employees who were
recalled to work after the layoff and currently are employed by Respondent.10 The
nature of these conflicts is such that either one or the other group of witnesses must
be regarded as unworthy of credence.
The determination of which group of employees gave reliable and which unre-
liable testimony is best disclosed by the record in respect to why this meeting was
called and its timing. According to the composite of the testimony of the General
Counsel's witnesses Maynard, Avant, and Hobbs, President Keathley opened the
meeting by stating that he had convened the employees because he had heard ru-
mors that they were trying to organize a union, that he wanted to know if this was
true, and asked for a show of hands by all those who wanted an outside union to
0 Respondent's president together with his wife and sons also wholly own Keathley's
Incorporated, another bakery, and the Town and Country Restaurant, all located in
Memphis.
Mainer's version of this conversation was that he asked Maynard, "Al, what is this
union bit?", and that Maynard replied. "It's none of your damn business." Although the
two versions are not substantially different, Maynard's testimony is credited because he is
regarded by me as the more reliable witness.
8In addition to President Keathley and Plant Superintendent Mainers, the meeting was
attended by the following eight employees in the unit : Alvin C. Maynard, W. E. Nixon,
W. T. Avant, Charles R. Tapley, Charles J. Hobbs, Cecil McFall, Charles Goss, and John
L. Sullivan. The other two employees in the unit, John E. Fortwengler and Everett W.
Weir, were not at work when the meeting was called and did not attend.
0 Maynard, Avant, Iiobbs, and Tapley.
10 McFall, Sullivan, and Goss.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represent them. However , the Respondent 's witnesses, including President Keathley
and Superintendent Mainers, testified that Keathley opened the meeting by telling
the employees that he had called them together because Respondent had lost money
on the last machine which had been shipped , and because he wanted suggestions
from the employees as to how operations could be improved so that a profit could
be made on all future shipments ." The record in respect to the Respondent's pur-
pose for calling the meeting was as follows: President Keathley and Plant Super-
intendent Mainers both testified that the two of them had discussed and agreed
upon a meeting of all the employees about 2 weeks before July 23 for the purpose
of taking up the complaints of two employees , Goss and McFall , regarding their
wage rates . They both testified that no date for the meeting was set at that time
because Mainers • had to go out of town. Keathley testified that when Mainers
returned from his trip, he told Mainers that he "had to be out two or three days,"
that the meeting would be held on Friday , July 23 , and that Mainers "could let
the employees know about it ." However, Mainers admittedly gave no prior notice of
this meeting to the employees , and he testified that Keathley first notified him of a
specific date and time when the meeting would be held just before it actually
occurred , which was while Mainers was working at Progressive on the afternoon
of July 23 . No reason was given or appears why a meeting of all the employees
should have been contemplated or necessary to consider the wage complaints of only
two employees . When Keathley opened the meeting, he admittedly did not tell
the employees that its purpose was to consider the wage complaints which he had
received from McFall and Goss. All of the foregoing compels the conclusion
which is made that no credence can be placed on the testimony of Keathley and
Mainers regarding their earlier discussions and arrangements for this meeting.
According to the Respondent's witnesses , including Keathley and Mainers, the
purpose allegedly stated by Keathley for the meeting was the loss suffered on the
last machine which was shipped, and to obtain suggestions to improve operations and
eliminate such losses . According to Respondent 's bookkeeper and witness Mrs. Ruth
Wagner, the last machine shipped before this meeting was one for $ 59,000 to Drake's
Bakery on May 24 . Wagner testified that she gives a written statement to Keathley
of the profit or loss on each machine when it "is finished ." Thus assuming there
was a loss, on the last machine,12 Keathley knew about it about 2 months before
this meeting . It stretches credulity beyond belief that Keathley would have waited
2 months after the report of an alleged loss on a machine to call a meeting of his
employees for the purpose of obtaining suggestions on how to eliminate such losses.
Accordingly , I do not believe either that this was the purpose of the meeting or
that Keathley so stated its purpose. On the other hand, the record discloses without
dispute that : ( 1) this July 23 meeting took place immediately after Keathley
learned that his employees were scheduled to attend a union meeting after work;
(2) Keathley was opposed to the representation of his employees by any "outside"
union ; and (3 ) the subject of outside union representation of Respondent 's employ-
ees was brought up by Keathley during the meeting. The foregoing , as well as other
events which admittedly occurred at the July 23 meeting , clearly require the con-
clusion which is made that Keathley called this meeting to combat the imminent
representation of Respondent 's employees by the Union . For these reasons, as well
as demeanor , I credit the testimony of the General Counsel 's witnesses Maynard,
Avant, and Hobbs that Keathley announced at the outset of the meeting that it
was called to determine whether the rumors he had heard that the employees were
trying to organize a union were true. In addition , the foregoing considerations,
as well as demeanor, persuade me to regard the testimony of Respondent's witnesses
in respect to the occurrences at this meeting as generally unreliable and worthy of
credence only when it accords with other credited testimony , or when, in the case
of Keathley and Mainers , it constitutes an admission against the Respondent's
interest.
In the light of the foregoing credibility resolution , and based on the composite
of the credited testimony of General Counsel 's witnesses and, to the extent credited,
of the Respondent's witnesses , I find that the following transpired at the July 23
meeting between Keathley and Respondent 's employees:
1. Keathley announced that he called the meeting because he had heard rumors
that the employees were trying to organize a union , and that he wanted to know if
this was true.
u The Respondent 's witnesses admitted that later in the meeting , Keathley asked that
employees who favored outside union representation raise their hands.
12 The Respondent did not produce the statement , and therefore , Keathley 's testimony,
that a loss was incurred in the manufacture of the last machine, is uncorroborated.
K, & M MACHINE COMPANY, INC. 87
2. Keathley asked for a show of hands. by all those who wanted an "outside"
union to represent them. All eight employees who attended the July 23 meeting
raised their hands.13
3. Keathley then said, "Apparently you have lost confidence in me as a manager,
but I will say this, that before I will allow some outsider to come in and dictate
to me how I shall operate my business, I will close this plant down." 14
4. Keathley asked each of the employees in turn why he was dissatisfied and felt
that he needed a union to represent him.15
5. Maynard, the first employee so interrogated, said that the' principal difficulty
was that Plant Superintendent Mainers was frequently absent from the plant and
unavailable for supervision or instruction when the employees ran into problems
in making the machines, and that when complaints came in from customers "for
inferior work," or because the machine "was not completed on schedule," there was
a tendency to blame the employees. Maynard said the employees "felt this was
unfair," and therefore believed they needed a union to represent them and "to help
to point out these things." 16
6. Keathley replied that he could correct that, that he would relieve Mainers
from his duties in the shop, and would allow the employees to select their own
foreman. Employee Hobbs "nominated" Nixon and he was approved by the employ-
ees by a show of hands.17
7. In response to Keathley's question to other employees as to why they were
dissatisfied and felt they needed an outside union to represent them, some of the
employees voiced displeasure with their job classifications which resulted in a wage
discrimination against them.18
8. Keathley then said that they (he and the' employees) had always been able
to work out their own problems before, and should be able to do so again without
spending money for outside union representation. According to the credited testi-
mony of employee Hobbs, Keathley said "that he thought we all got along, that we
wouldn't need it [a union], why couldn't we form a little committee or union of
our own in the shop there." Keathley suggested that one employee be selected by
the employees to represent them. If there were any complaints, the employee repre-
sentative so selected could come into the office and work out the grievances with
him, Plant Superintendent Mainers, and Foreman Nixon. Keathley further said
that the employee thus selected also would have the function, together with the
Respondent's representatives, to evaluate the employees' ability and decide whether
13 According to the discredited testimony of Respondent's witnesses, only Maynard and
Nixon raised their hands. However, just one week earlier, all 10 of Respondent's employees
in the unit signed cards authorizing the Union to represent them. Moreover, a few days
after this meeting, all but two of the employees signed applications for membership therein.
14 The quotes are from the credited= testimony of Maynard, corroborated in substance by
Avant and Tapley. Hobbs, whose memory admittedly is "the world's worst" could not
remember whether this threat was uttered Keathley's version, corroborated in substance
by Respondent's witnesses but not credited, is that he said, "Those that felt like they
needed a union must have lost confidence in my ability to manage and treat them fair
[sic] . . . If the 'union came in and we began to lose money, the place-the shop would
have to close." Significantly, the record discloses that although Respondent had operated
at a loss in 1963, in the last 2 fiscal years it had operated profitably, and in its latest
fiscal year which ended on February 28,1965, Respondent had earned a profit of $10,163 57.
is Respondent's brief (p. 3) concedes that Keathley "asked why those raising hands felt
that it was necessary to have this outside representation "
ii There is no dispute in the record that a complaint regarding insufficient supervision
by Mainers was voiced by the employees at the meeting
17 The only dispute in the record in respect to the foregoing, is whether Nixon was
appointed foreman by Keathley, or was suggested by one of the employees and voted on by
all of them The Respondent's witnesses testified to the latter version, and were substan-
tiated in their testimony by two of the witnesses for the General Counsel-employee Hobbs,
who testified that he "nominated" Nixon, and employee Tapley, who admitted that the
employees voted to accept Nixon Accordingly, I credit the Respondent's witnesses in this
respect As aptly stated by Judge Learned Hand
It is no reason for refusing to accept everything a witness says, because you do not
believe all of it, nothing is more common in all kinds of judicial decisions than to
believe some and not all
N.L B B v Universal Camera Corporation, 179 F.2d 749, 754 (C A. 2), reversed on other
grounds 340 U.S. 474
is The record is undisputed in this regard.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were entitled to an increase in pay. The employees agreed to follow Keathley's
suggestion, and Alvin C. Maynard was nominated and elected as the employees'
representative.19
9. In regard to the complaints about job classifications and pay, Keathley also
told the employees that he already had contacted some of the other shops in town
to determine the rates they were paying for comparable work, that he would do so
again, and that he would make whatever adjustments were necessary to bring
Respondent's pay structure in line with competitive shops. Keathley also promised
that he would meet promptly with the employees' representative to consider the
pay question.
10. This meeting lasted beyond the employees' regular working hours which end
at 4:30 p.m. During the meeting, Maynard asked for an adjournment so that the
employees could attend their scheduled union meeting. Keathley replied that he
would like for the employees to stay and hear him out, and since it was after
regular working hours, he would pay them time and one half to remain until he
finished. The employees remained until 6 p.m. and, according to Respondent's pay-
roll records, received overtime pay for 21/4 hours. As a result, after the meeting
terminated, Maynard called the Union's office, canceled the meeting for that night,
and arranged to meet on another date.
D. Events following the July 23 meeting
1. The wage increases on July 26
On the following Monday morning, July 26, employee Maynard, as the employ-
ees' representative, attended a meeting with Keathley, Mainers, and Nixon called
by President Keathley. The meeting was held in the Respondent's office during work-
ing hours for which Maynard was paid. Keathley presided over the meeting and
stated that its purpose was to consider and evaluate the employees' pay and job
performance. Keathley told Maynard that his pay was being raised from $3.05 to
$3.15 per hour, and that Nixon, as newly promoted shop foreman, would be put
on salary and also given a raise.20 After discussion of their skills, jobs, and perform-
ance, six additional employees (all but two) were given raises.21 These raises were
put into immediate effect and the employees were notified in writing that same day
of their new rates of pay.
2. The applications for membership in the Union
Notwithstanding Keathley's meeting with the employees on July 23, and the
increase in wages given on July 26 to seven of the nine remaining employees in the
unit,22 all but two of the employees signed applications for membership in the
Union and paid the $5 initiation fee necessary to join.23
3. Interrogation of employee Hobbs by Superintendent Mainers
On July 27, the day after employee Hobbs signed an application for membership
in the Union and paid his $5 initiation fee, Superintendent Mainers said to him,
"They got your $5 didn't they?" 24
19 There is no substantial dispute in the record regarding the above.
20 The Respondent's payroll records disclose that Nixon's hourly rate was increased from
$3.25 per hour to $3.371,$.
21 Hobbs, Sullivan, Fortwengler. and Goss were raised from $2.80 to $2.85. McFall and
weir were raised from $3 to $3.05. Avant and Tapley remained at $3.05 and $2.80 per hour,
respectively.
22 The parties stipulated that after the July 23 meeting, Nixon, as foreman, was a super-
visor within the meaning of the Act, and therefore, no longer in the unit.
23 \IcFall's fee was advanced for him by another employee, but he never repaid It.
2; The foregoing finding is based on the credited testimony of Ilobbs, who, notwithstand-
ing that he is one of the discriminatees named in the complaint, appeared to me to be
disinterested in the outcome of this proceeding. Although Hobbs was laid off on July 30
along with the Respondent's other employees he immediately was offered employment by
President Keathley at Progressive but declined because he had secured another job in the
interim. Ile quite apparently bore the Respondent no animus for his termination, and he
displayed none. Mainers denied making this statement or inquiry, but as previously noted,
his testimony is not regarded as reliable, and his denial is not credited.
K & M MACHINE COMPANY, INC. 89
4. The Union's demand for recognition
On July 29, the Union, by registered letter, demanded recognition and bargain-
ing for the employees in the production and maintenance unit and offered to prove
its majority status by a card check. The letter was received by Respondent on
July 30.25 The Respondent did not respond to the Union's demand. According to
the Board's administrative records, on August 3, the Union filed a petition for
certification as the collective-bargaining representative of Respondent's production
and maintenance employees which it subsequently withdrew on August 24.26
5. The layoff of employees on July 30
On July 30, the same day that Respondent received the Union's bargaining
demand, all of the employees in the production and maintenance unit received
slips at the end of the workday which stated that they were being laid off for "lack
of work," and a letter which read as follows:
July 30, 1965.
Due to the fact we have no orders in now, we are sorry, but we have to
lay you off.
We enclose your check for this week and last.
We appreciate all you have done for us and wish you good luck.
Sincerely,
K & M MACHINE CO.
(S) M. F. Keathley, Sr.
M. F. KEATHLEY, SR.
President
No prior notice of the layoff was given to the employees before it occurred.
None of the employees who received layoff notices on July 30 had ever been laid
off before, although some had worked for Respondent for as long as 5 years.
Before this layoff, the Respondent had never laid off more than one or two
employees at any time. Generally, these layoffs occurred when an employee who
was hired for a specific job completed that job. This occurred in the case of two
unnamed employees in April. Of the employees who were working for Respondent
at the time of the layoff, only Tapley, the last employee hired, had received any
indication of possible termination. Tapley was told about July 1 by Plant Super-
intendent Mainers that when he finished the job on which he was working, and if
nothing further came in, he would be laid off because he was the last employee
to be hired.
6. The rehiring of some employees after the layoff and the failure to recall others
Although the Respondent laid off all its employees on July 30, two, Fortwengler
and Goss, were immediately transferred by President Keathley to Progressive's pay-
roll to install a conveyor, the same type of work which Respondent 's employees
previously had performed for Progressive.27 In addition to installing a conveyor,
Fortwengler and Goss also occasionally did "maintenance work" and "service on
breakdowns" for Progressive. This also was work which previously had been per-
formed for Progressive by Respondent's employees. Fortwengler also admittedly
reworked a vat for Progressive in August 1965, working overtime to do so. "A great
deal" of this work was performed at the Respondent's adjacent premises using
Respondent's machinery, tools, and equipment. Fortwengler and Goss continued to
work on Progressive's payroll until the week ending September 16, at which time
they were retransferred without loss of time to Respondent's payroll. At the time
of the hearing in this case they were still employed by Respondent. However, the
payroll records of Progressive and Respondent for these two employees discloses
that since their retransfer to Respondent's payroll, Fortwengler and Goss have put
z The return receipt was signed on that date by President Keathley's son Naymond
Keathley, for the Respondent.
21 Case 26-RC-2467.
n Fortwengler and Goss started to work on Progressive's payroll on August 2, the Mon-
day following the layoff. and thus lost no time as a consequence of the layoff. On the night
of the layoff, Hobbs also received an offer of immediate employment at Progressive from
Keathley but declined. See footnote 24, supra.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in extensive hours of overtime work for Progressive while working full-time for
Respondent. Coincidently, these were the only two employees of Respondent who
did not sign applications for membership in the Union after Keathley' s meeting
with his employees on July 23.
Another of the "laid off" employees, Cecil McFall, was immediately hired by
Plant Superintendent Mainers to work at the latter's concession at the Memphis
fairgrounds to make a machine called a high striker. McFall worked for Mainers
for about I week and was then immediately reinstated by Respondent. By another
strange coincidence, McFall was the employee who signified his loss of interest in
the Union by vehemently denying at the hearing that he had paid the Union's
initiation fee which had been advanced for him by another employee.
John L. Sullivan, another of the laid off employees, was reinstated by Respondent
on about September 20.28 Charles Tapley was reinstated by Respondent on about
October 28 to do a special job on a part-time basis, and was again laid off by
Respondent after 4 weeks. Respondent fired Foreman Nixon on December 10, and
hired a trainee , R. D. Glover, as his replacement on December 27. None of the
other four employees who were laid off, including Maynard who was the highest
paid, and Weir who had the most seniority, were ever reinstated.
7. Further interrogation of employee Maynard
On August 12, employee Maynard visited Respondent's plant for the purpose of
ascertaining whether and when he would be reinstated, and had a conversation with
President Keathley in his office. According to Maynard's credited testimony, Keath-
ley asked Maynard if he was "the one that started this union business out there?"
Maynard replied that it was not he, but that he could furnish the name of the
employee who initiated it at an appropriate time. Keathley then asked Maynard
whether he had voted for the Union in the previous election. Maynard denied that
he had done so, although concededly that was not the truth. Keathley then asked
Maynard what might happen "if some of the fellows in the shop were fired." May-
nard replied that he could not answer that question, and that Keathley should seek
the advice of counsel. Maynard then told Keathley he had two job offers out of
the city, but before he acted thereon, he wanted to know if and when he would be
reinstated by Respondent. Keathley replied that Maynard ought to accept one of
his job offers, since he could offer Maynard no security, and the Respondent was
in "a very, very trying period." 29
- 8. Additional interference, restraint, and coercion
Shortly after the Union's withdrawal of its petition, or about a month after the
layoff, employee Avant had a conversation, with Plant Superintendent Mainers at
the Memphis fairgrounds. According to Avant's credited testimony, Mainers told
him, "the boys that was [sic] trying to get the union in didn't come out so well,
because the union had withdrew [sic] the case. Now we can be able [sic] to hire
the men back, if we want to,-on our own terms, if we desire'. so;. they can run two
machines and sweep the floor at the same time, and that includes Mr. Everett Weir,
which [sic] objects to such work." 30
28 The wage payments shown on Respondent's payroll records admittedly are for work in
the penultimate payroll, period preceding payment. Accordingly, since Sullivan's first pay
after reinstatement, was on October 1 for 40 hours of work, he obviously was reinstated on
September 20 and not on October 1 as he testified. -
Keathley admitted that the foregoing conversation occurred, and except for the ques-
tion of which of them first directed the conversation to union matters, there is no substan-
tial dispute that Keathley interrogated Maynard regarding his union activities. Indeed,
according to Keathley, when Maynard denied that he instigated the employees' union
activities, Keathley also asked Maynard "if any of the others instigated its" '
80 This alleged violation of Section 8(a) (1) of the Act was added to the complaint by a
motion to amend granted at the hearing. Although Avant's affidavit to the Board agent
admittedly contained no reference to this incident, I was favorably impressed by his
demeanor while testifying, and regard this testimony as worthy of credence. In respect to
this incident, Mainers admitted only that he was asked by Avant when they would be get-
ting back to work, and that he replied that he saw no likelihood of it in the near future
'For reasons previously stated, I regard Mainers' testimony as generally unworthy of
credence, and I therefore do not credit Mainers' version of this conversation.
K & M MACHINE COMPANY, INC. 91
E. Concluding findings in respect to interference, restraint, or
coercion of employees
1. Interrogation
On July 23, Superintendent Mainers interrogated employee Maynard regarding
his views about the Union. On the same day President Keathley asked all of his
employees who desired a union to represent them to raise their hands, and he also
asked the employees who did so why they felt they needed a union . On July 28,
Mainers asked employee Hobbs to verify whether he had paid his $5 initiation fee
to the Union. On August 12, President Keathley asked employee Maynard whether
he had instigated the union activities of the employees. When Maynard denied that
he had, Keathley also asked Maynard who among the employees had done so, and
whether Maynard had voted for the Union in the last election conducted by the
Board.
The Respondent contends (brief, p. 3) that the record does not disclose that "the
employees were intimidated" by the interrogation, or that "they considered the
question[s] to be coercive," and that therefore this conduct did not trespass on
Section 8 (a)( I) of the Act. "Coercion by interrogation is one of the subtle forms
of management's interference with labor's protected rights." 31 The test for deter-
mining whether statements or interrogation are coercive is not whether the employ-
ees were in fact coerced thereby, but whether it "reasonably may be said [that it]
tends to interfere with the free exercise of employee rights under the Act." 32 The
courts 33 and the Board 34 have established certain criteria to consider in weighing
the propriety of employer interrogation of employees. Viewed in the light of these
criteria, it is quite apparent that all of the interrogations in this case occurred in a
context of Respondent's admitted hostility and opposition to the representation of
its employees by the Union, including, as found above, a threat to close the plant
if the Union "came in." The persons who engaged in the interrogation were the
Respondent's two highest officials-its president and plant superintendent. Except
for the last interrogation of Maynard in August, all of the interrogations occurred
before any demand for recognition had been made by the Union, and they there-
fore cannot be defended as necessary to determine whether the Union in fact
represented a majority of the employees. Under the circumstances and in the context
in which they occurred, the contention that the interrogations were not coercive
is devoid of merit and rejected.
The Respondent also defends its August interrogation of Maynard apparently on
the ground that because he was no longer an employee of Respondent, such inter-
rogation does not transgress the proscriptions of Section 8(a)(1) of the Act. How-
ever, contrary to this contention, the record is undisputed that at the time this
interrogation occurred, Maynard was on temporary layoff status and thus was an
employee of Respondent.35 At the very least, Maynard admittedly was then inquir-
ing about the possibility of being reinstated, and therefore was an applicant for
employment, and an employee within the meaning of Section 2(3) of the Act 36
Accordingly, this contention is likewise rejected as without merit. It is therefore
found that by all of the interrogations described above, the Respondent interfered
with, restrained, and coerced its employees in the exercise of their rights guaranteed
by Section 7 of the Act, and thereby engaged in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
2. The threats to close the plant
As found above, at the July 23 meeting, after the employees had indicated by a
show of hands that they wanted a union to represent them, President Keathley said,
"Apparently you have lost confidence in me as a manager, but I will say this, that
before I will allow some outsider to come in and dictate to me how I shall operate
31 N L R B. v. Cameo, Inc, 340 F 2d 803, 804 (C A 5)
33 N.L R B. v Wilbur H 'Ford, d/b/a Ford Brothers, 170 F 2d 735, 738 (C A 6) , N.L R B
v. Illinois Tool Works, 153 F 2d 811, 814 (C.A. 7).
33 Bonnie Bourne, an individual d/b/a Bourne Co. v. NLRB , 332 F 2d 47, 48 (C A. 2).
34 Blue Flash Express, Inc, 109 NLRB 591
35 Respondent 's Director E Andrew Calwell testified that the layoff was voted by the
board of directors as temporary.
30 Phelps Dodge Corp V. N L R B, 313 U.S. 177.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
my business, I will close the plant down." This threat to the job security of
Respondent's employees quite obviously constitutes interference with, and restraint,
and coercion of, employees' rights guaranteed by Section 7 of the Act, and there-
fore it is found that thereby the Respondent engaged in further unfair labor prac-
tices within the meaning of Section 8(a)(1).
3. The promise and granting of wage increases
It is not disputed that the employees' complaints about job classifications and
wages were voiced by the employees in response to Keathley's interrogation as to
why they felt they needed an outside union to represent them. In this context it
is quite obvious that Keathley's promise that he would promptly consider wage
adjustments after ascertaining what competitive shops were paying, and his granting
of wage increases to substantially all of his employees, was motivated by a desire
to chill the employees' interest in union representation, and it is so found. But even
assuming that such was not Respondent's motivation, the circumstances under which
the promise and wage increases were given reasonably tended to interfere with,
restrain, and coerce employees in the exercise of their right to be represented by
the Union, and therefore, the Respondent thereby engaged in further violation of
Section 8(a)(1) of the Act.37
4. The promotion of employee Nixon to foreman
As in the case of the wage increases, the promotion of employee Nixon to fore-
man resulted from a complaint (of insufficient supervision) voiced by employees
at the July 23 meeting in response to President Keathley's inquiry as to why the
employees wanted a union to represent them. Under the circumstances under which
this promotion was made, it is quite obvious and found that it was motivated by
Respondent's desire to dissuade its employees' further interest in representation by a
union . However, even without such motivation, in the context in which the promo-
tion was made, it tended to interfere with, restrain, or coerce employees from fur-
ther pursuing their desire for union representation, and thus constituted an unfair
labor practice within the meaning of Section 8(a)(1) of the Act.38
5. Miscellaneous
a. As found above, President Keathley summoned his employees to attend a meet-
ing on the afternoon of July 23, immediately after he learned that they were
scheduled to attend a union meeting after working hours that day. Nevertheless,
with knowledge that it would impede their attendance at the union meeting, Keath-
ley detained the employees for 11/z hours after regular quitting time and paid them
overtime therefor.39 By this conduct the Respondent further interfered with the
exercise of its employees' Section 7 rights, and engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act 40
b. As found above, in the latter part of August, Plant Superintendent Mainers
told laid-off employee Avant, "The boys that was [sic] trying to get the Union in
didn't come out so well, because the Union had withdrew [sic] the case. Now we
can be able to hire the men back, if we want to, on our own terms, if we desire
so, they can run two machines and sweep the floor at the same time, and that
includes Mr. Everett Weir, which [sic] objects to such work." The quite apparent
implication of this statement by Superintendent Mainers is that Respondent had
withheld reinstatement of its employees during the pendency of the Union's petition
for certification, and could now with impunity repay the employees for engaging
in union activity by requiring them to do more work than previously, as well as
unpleasant work. I regard this statement by Mainers as clearly tending to coerce
3T American Freigh.twaps Co, Inc, 124 NLRB 146, 147; Hermann Equipment Manufac-
turing Company, Inc, 156 NLRB 716, footnote 3; N L R B v. Ford, supra; N.L.R B. V.
Illinois Tool Works, supra
38 Id.
an Prior to this meeting, the Respondent, for reasons of economy, had eliminated all
overtime work.
0 Bauer Welding & Metal Fabricators, Inc, 154 NLRB 954, enfd. 358 F.2d 766 (C.A. 8).
K & M MACHINE COMPANY, INC. 93
employees in the exercise of rights guaranteed by the Act, and therefore find that
the Respondent thereby further violated Section 8(a)(1) of the Act.
F. Concluding findings in respect to the establishment and domination
of the shop committee
As found above, at the July 23 meeting with his employees, President Keathley
suggested that rather than pay money to an outside union, and in view of the prior
good relations between Respondent and its employees, the latter ought to "form a
little committee or union of [their] own in the shop there," and select one employee
to meet with him, Plant Superintendent Mainers, and Foreman Nixon to resolve
employee complaints and differences, including requests for wage increases. The
employees agreed to follow Keathley's suggestion and elected Maynard as their
representative. On July 26, Maynard attended a meeting with the Respondent's
above-named representatives, called and presided over by Keathley. This meeting
took place during working hours for which Maynard was paid by Respondent. At
this meeting, the company representatives and Maynard considered and discussed
the relative merits of the Respondent's employees and wage increases for a number
of them, and as a result, seven of the Respondent's employees received raises in
their rates of pay that same day. So far as this record shows, no further meetings
of this group ever occurred.
The complaint alleges that the "shop committee" is a labor organization within
the meaning of Section 2(5) of the Act,41 and that the Respondent initiated, spon-
sored, and formed the "shop committee," and assisted, dominated, and contributed
support to it, in violation of Section 8 (a) (2) of the Act.42
The Respondent's answer raises the issue that this alleged violation is time barred
by Section 10(b) of the Act 43 In respect to this issue, the record discloses that the
original charge was filed by the Union on January 14, 1966, and was served on
the Respondent by registered mail on the same day. This charge alleged violations
of Section 8(a)(1), (3), and (5) of the Act by Respondent, but not of Section
8(a)(2). In respect to the alleged 8(a)(1) violations, the charge, after reciting
specific violations which allegedly occurred at the Respondent's July 23 meeting with
its employees (erroneously referred to as July 15 in the charge), stated as follows:
By the acts set forth in the paragraphs above, and by other acts and conduct
the above named employer by its officer and agents, interfered with, restrained
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
On March 2, 1966, the Union filed a first amended charge which was served by
registered mail on the Respondent on the same date and received by it on March 3,
1966. The charge as amended specifically added to the originally alleged violations,
an allegation that the Respondent on July 23, 1965, formed a labor organization
among its employees, and that on and since that date, Respondent dominated and
interfered with the operation and administration of said labor organization, and
contributed support thereto in violation of Section 8(a)(2) of the Act.
From the record herein, it is apparent that the events allegedly constituting the
Section 8(a)(2) violation occurred on July 23 and 26, 1965, and that the first
amended charge which for the first time specifically referred to this violation, was
filed and served more than 6 months after the alleged unfair labor practice occurred.
41 Sec. 2. When used in this Act-
(5) The term "labor organization" means any organization of any kind, or any
agency or employee representation committee or plan, in which employees participate
and which exists for the purpose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment, or con-
ditions of work.
49 Sec. 8(a) It shall be an unfair labor practice for an employer-
(2) to dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it.
43 To the extent material herein, Section 10(b) of the Act provides as follows:
. . . Provided, That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such charge is made, . . .
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in Kansas Milling Company v. N.L.R. B.,44 the court of appeals , dealing
with a similar contention stated as follows:
Petitioner 's first contention is that the action was barred because the unfair
labor practices relied upon in the Board 's order occurred more than six months
prior to the filing of the second amended charge on which the complaint issued.
The Act requires a charge to be filed before the Board may issue a com-
plaint . The charge , however , is not a pleading . It merely sets in motion the
machinery of an inquiry to determine whether a complaint shall issue. It has
served its purpose when the Board embarks upon an inquiry . Anyone can file
a charge . Many are filed by private citizens unskilled in the law or art of
pleading. To require the strictness of formal pleadings in such cases would
seriously impair the salutary purpose of the Act and the operations of the
Board charged with its administration . A charge in the general language of
the statute is sufficient if it challenges the attention of the Board and leads to
an inquiry under the provisions of the Act.
So likewise an amended charge will be timely although filed more than six
months after the occurrence of the alleged unfair labor practice if it relates to
an unfair labor practice inherent in or connected with the original charge. In
such cases , it will relate back to the filing of the original charge. The doctrine
of relating back in pleading is well recognized in the general law. It should not
be narrowly applied in a remedial act such as the one before us when the only
purpose of the charge is to set in motion an inquiry by the Board to determine
whether a violation has occurred . [ Emphasis supplied.]
Viewed in the light of these principles , it is quite apparent that the original charge,
which was timely filed and served , related to the Respondent 's conduct at the
July 23, 1965, meeting with its employees , and alleges such conduct as violations
of Section 8 (a) (1) of the Act. Moreover, although the formation and domination
of the "shop committee" was not specifically referred to in the original charge, the
language of the charge , quoted above, was sufficiently broad to include such conduct
in the violations of Section 8(a)(1) of the Act alleged therein. For the foregoing
reasons, I regard the first amended charge as "related to or inherent in" the unfair
labor practices alleged in the original charge, and therefore reject the contention
that the alleged violation of Section 8(a) (2) of the Act is time barred.
In respect to the merits of the alleged violations of Section 8(a) (2) of the Act,
the General Counsel 's brief (pp. 16-17 ) contends that the "shop committee" which
constituted the dominated and assisted labor organization consisted of the three
Respondent's representatives and Maynard . This contention is regarded as unsup-
ported by the record , which clearly discloses that the three employer representatives
who conferred with Maynard , did so not as a part of any labor organization, but
rather as a management team representing the Respondent . Notwithstanding this
conclusion , the record does establish that the action taken by the Respondent's
employees at the July 23 meeting pursuant to President Keathley's suggestion, was
to establish themselves as "a little committee or union of [their] own ," that this
informal committee or union elected Maynard as their spokesman or representative
to deal with Respondent , and that this little committee or union of all of the
employees constituted an "employee representation committee or plan" within the
meaning of Section 2 ( 5) of the Act , which existed in whole or in part for its pur-
pose of dealing with the Respondent concerning grievances , wages, and conditions
of work . The record shows that the Respondent sponsored and initiated the forma-
tion of said labor organization , dictated the number of representatives which it
should appoint to deal with it, and paid that representative for his time spent in
conferring with Respondent . Accordingly, I conclude that the Respondent initiated,
assisted, dominated, contributed support to, and interfered with the formation and
administration of a labor organization , and thereby engaged in unfair labor prac-
tices within the meaning of Section 8 ( a)(2) and (1) of the Act 45
G. Concluding findings in respect to the discriminatory layoff of
employees on July 30
1. The General Counsel 's prima facie case
On July 30 , the Respondent laid off all its production and maintenance employees,
and retained only its supervisors , Superintendent Mainers and Foreman Nixon. This
44 185 F.2d 413, 415 (C.A. 10).
+6 Cabot Carbon Company, 117 NLRB 1633, affd . 360 U S. 203 ; Pacemaker Corporation,
120 NLRB 987.
K & M MACHINE COMPANY, INC. 95
layoff took place only 4 days after the Respondent had given all but two of these
employees a raise, and only a week after the Respondent had promoted one of its
employees to foreman and had initiated the formation of a little shop union of its
employees, all in an effort to defeat their representation by an "outside" union.
Despite these unfair labor practices, seven of the Respondent's nine employees in
the unit signed applications for membership in the Union between July 26 and 29
and paid initiation fees of $5 each to join. As found above, on July 27, after
Hobbs signed his union application and paid his initiation fee, Plant Superintendent
Mainers became aware that Hobbs had joined and paid his initiation fee. In addi-
tion, Foreman Nixon, the source of Respondent's knowledge that the employees
were going to attend a union meeting on July 23, also signed an application for
membership in the Union. It is therefore obvious that the Respondent had knowledge
that its efforts to chill the interest of its employees in the Union had not been
successful. Moreover, the layoff occurred on the same day that Respondent received
the Union's demand for recognition and bargaining and offered to prove its majority
status by a card check 46 The foregoing record persuasively establishes a strong
prima facie case that the sudden layoff of Respondent's employees without prior
notice was motivated by antiunion considerations.
2. The Respondent's asserted reasons for the layoff
The Respondent's explanation for the layoff is that it was economically motivated
by lack of work for the employees, and lack of funds to pay their wages. The
Respondent's testimony further suggests that the Union's recognition demand of
July 30 could not have motivated the layoff, because (1) the decision to terminate
the employees was made before that date by the Respondent's board of directors
at a meeting on July 28; and (2) that the said board of directors' action was based
solely on the Respondent's financial condition. These contentions will be considered
hereinafter.
a. The board of directors" meeting
In respect to the board of directors' meeting, there is much in the record that
raises grave doubt that this meeting, if indeed one was held, is worthy of any
weight in assessing the Respondent's motivation for the layoff. President Keathley
admittedly had authority to lay off employees without prior approval of the direc-
tors. As owner of 52 percent of the outstanding stock in Respondent, all of the
directors held office as a result of Keathley's choice, and only for as long as Keath-
ley was willing to have them so act. None of the directors was employed by
Respondent or actively concerned or involved in the day-to-day operations of the
business. Their knowledge of Respondent's financial condition on the date of the
alleged meeting was based solely on what Keathley told them. In the light of
Keathley's control, his gratuitous testimony , in response to no question , that he
called the meeting of the directors because "I didn't want to make that decision [of
laying off the employees] by myself," in effect means that Keathley desired the
directors to rubber stamp his contemplated action, and thereby clothe it with appar-
ent legality. Thus, even assuming that the directors voted to lay off the Respond-
ent's employees on July 28 because of Keathley's report of the Company's financial
16 The Union's registered letter containing this demand and offer concededly was received
and signed for on July 30 by Naymond Keathley, the son of Respondent's president. Presi-
dent Keathley testified that he was not in his office on July 30 and that he first "saw it"
on Saturday, July 31. Significantly, Keathley did not testify that he was unaware of the
contents of the letter on July 30, although that obviously was the implication he sought
to convey when he denied that he "saw it." Admittedly, Keathley was in town on July 30.
As previously noted, I regard President Keathley's testimony as generally unreliable.
Moreover, I regard it extremely unlikely that Keathley's son would not have apprised him
promptly of the receipt of a registered letter, and/or have conveyed to him a report of its
contents. For these reasons, I do not credit Keathley's testimony that he did not "see" the
Union's demand on July 30, and do not credit the implication that Keathley was unaware
of the Union's demand for recognition until July 31. As the Supreme Court said in N.L.R.B.
v. Walton Manufacturing Company, 369 U.S. 404, 408, citing with approval the opinion
of Justice Learned Hand in Dyer v. MacDougall, 201 F.2d 265, 269 (C.A. 2) :
For the demeanor of a witness . "may satisfy the tribunal not only that the witness'
testimony is not true, but that the truth is the opposite of his story; for the denial
of one, who has a motive to deny, may be uttered with such hesitation, discomfort,
arrogance or defiance , as to give assurance that he is fabricating, and that if he is,
there is no alternative but to assume the truth of what he denies."
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition, it is worthy of no weight in determining what motivated Keathley to
secure the directors' approval for the layoff.
The Respondent first attempted to prove that such a meeting of the board of
directors was held and what transpired thereat by offering in evidence an alleged
copy of the minutes through President Keathley. This offer was rejected on the
objection of the General Counsel on the ground that the minutes had not been
properly authenticated by the Respondent's secretary who assertedly prepared them.
Respondent 's counsel was advised at that time that the minutes would be received
in evidence if properly identified by the secretary. However, the secretary was not
called, no explanation was given for the failure to do so, and the minutes were not
again offered for inclusion in the record. The inference is therefore permissible and
made that if called, the secretary would not have supported Keathley's testimony
that the offered exhibit was a copy of minutes of a directors' meeting assertedly
held on July 28.47 Instead, the Respondent called Director E. Andrew Caldwell, a
small minority stockholder who is also the Respondent's insurance broker, to cor-
roborate President Keathley's testimony regarding this meeting.
Their testimony regarding when notice of the meeting was given was contra-
dictory . Caldwell testified that he was notified by a telephone call from President
Keathley on Sunday, July 25, that a directors meeting would be held on Wednes-
day, July 28. However, Keathley testified that he did not make the decision to call
a directors ' meeting until Monday or Tuesday (July 26 or 27 ) when orders which
he had expected failed to arrive in the mail. Obviously, Keathley could not have
contemplated a layoff of employees on July 26, for on that very day he gave seven
of his employees ( eight , including the foreman ) a raise . Thus, even assuming that
Keathley did call a directors ' meeting, he quite apparently did not do so before
July 27. However, by then, Respondent already knew that notwithstanding the
events at the July 23 meeting with employees , and the July 26 raises , its employees
were signing applications for membership in the Union and paying $ 5 initiation
fees to join.
The testimony of Keathley and Caldwell also conflicted regarding the manner in
which the question of a layoff was presented by Keathley. According to Keathley,
after telling the directors that orders which had been expected had not come in yet,
funds were low, and no further bank loans could be made, he asked them whether
he should try to borrow money elsewhere to keep the employees working, or
whether he should lay them off. Thus, according to Keathley's version, the directors
were given a choice, and it was the directors ' unanimous decision to lay off the
employees. However, Caldwell testified that Keathley told the directors that there
were no orders on hand, that the Respondent had a large number of employees,
that the payroll was "quite heavy, and we could not continue in business until we
received some orders.. ." Thus, according to Caldwell's version of what Keath-
ley said, no real alternative was left to the directors but to vote to lay off the
employees.
Finally, the Respondent 's testimony regarding this directors ' meeting indicates
that when they voted to lay off the employees, they knew that the Union was
engaged in an organizational campaign to represent Respondent 's employees. In
this respect, Keathley at first testified that he neither told the directors that the
Union was attempting to organize Respondent 's employees , nor mentioned the
Union at all. However, on further questioning, Keathley, after much evasion, reluc-
tantly conceded that he told the directors that "some of the boys were dissatisfied
and there might be some organizing soon ." Caldwell testified in this regard that
Keathley told the directors "that there was a possibility of being an election among
the union members coming within our company for organizational purposes ." More-
over, Caldwell admitted on cross-examination that during earlier casual luncheon
conversations with the other directors , he had learned "that the Union was attempt-
ing to organize or come into the plant."
All of the foregoing persuades me to conclude that in determining the Respond-
ent's motivation for the layoff, no weight can be given to the fact that the board of
directors, at Keathley's bidding, allegedly voted to layoff the employees for financial
reasons.
b. The alleged lack of work for Respondent's employees
We come then to the Respondent 's assertion that the layoff was required by lack
of work for the employees . In respect to this contention , the record discloses with-
47 See 2 Wigmore, Evidence § 285 (3d ed.) ; Whiten Machine Works, 100 NLRB 279,
285; Detroit Plastic Products Company, 121 NLRB 448, 499.
I{ & M MACHINE COMPANY, INC. 97
out dispute that at the time of the layoff, the Respondent had no new orders for
machines to be built other than the work then in progress. The last order to manu-
facture a machine had been received by Respondent from Seavers' Bakery on
May 28. Work on this machine concededly was in progress at the time of the
layoff. Plant Superintendent Mainers, a witness for Respondent, testified that about
2 more weeks of work, utilizing all of the Respondent's employees, was required
for its completion.48 In addition, at the time of the layoff, Hobbs was working on
the repair of a vat which was not finished. The Respondent also had a tortilla
machine in the shop for reconditioning, the order for which had been received
from LaReina Tortilla Company. This order for $9,600 had been worked on "at
odd times during the year" and still needed some "finishing" work according to
President Keathley's admission.49 The Respondent admittedly also had small repair
jobs, some involving welding work, which came in "all during the year." In addi-
tion to this work in its own plant, all of the Respondent's employees previously
had performed work at Keathley's wholly owned Progressive doing repair work and
installing conveyors. As found above additional work of this nature existed for at
least some of Respondent's employees when the layoff occurred on July 30. Finally,
as noted above, at the time of the layoff, Keathley was daily expecting new machine
orders to come in which did not materialize.
Quite obviously Respondent knew on July 26 when it gave its employees a wage
increase, that it had received no new orders for a machine in 2 months, yet that
did not deter it from granting its employees a wage increase to discourage their
support of the Union. The granting of said wage increase on July 26 to meet the
complaints of its employees quite clearly demonstrated that on that date, the
Respondent contemplated continuing its operations and retaining its experienced
machinists and other craftsmen in its employ. The work in its shop admittedly was
sufficient to keep its employees occupied for at least 2 weeks. As found above, there
also was work available for some of Respondent's employees at Keathley's wholly
owned and controlled Progressive. In addition, as President Keathley admitted there
were always little jobs coming in for repairs. Moreover, the Respondent, so far as
this record shows, had no knowledge that the new orders for machines, which it
admittedly was expecting daily, would not come in before the work then in the shop
would be completed. All these considerations make it quite apparent that lack of
work for the employees could not have been the reason for the July 30 layoff, and
therefore the assignment of this reason by Respondent for the sudden termination
of all the employees, quite obviously must be and is regarded as a pretext to con-
ceal the real reason therefor.50
48 After the layoff, this machine was completed by Superintendent Mainers and Foreman
Nixon and shipped to the customer on August 19. But for the layoff, Mainers would have
done no production work on this machine, and Nixon would have been occupied substan-
tially in "leading" the other employees and giving them instructions.
4° Keathley also testified that work on this machine was finished during the week of
July 30. However, as of the date of the hearing in this case, 9 months after the layoff,
the tortilla machine admittedly had not yet been delivered to the customer. The Respond-
ent's contract terms for its services provide for a payment of 40 percent when an order
is received, 40 percent more when the machine is delivered, and the balance 30 clays after
delivery. No explanation was offered for the delay in delivering the tortilla machine. In
the light of the foregoing, and the general unreliability of Keathley's testimony, the con-
clusion is fairly apparent that the reason for the nondelivery of the tortilla machine was
that work on it was not completed, for otherwise, the Respondent would have shipped it
in order to receive payment of the balance due thereon.
50 In reaching this conclusion, I have given due. consideration to the Respondent's testi-
mony that after the layoff, no order for a new machine was received by Respondent before
September 13, and that the Respondent has operated its business with only four or five
employees, not including supervision. I have also duly considered the only two Progressive
payroll records in evidence, that of Fortwengler and Goss, which disclose that while work-
ing full time for Respondent, these two employees also were working extensive overtime
hours for Progressive. All of the foregoing suggests only that at some later date after
July 30, a nondiscriminatory reduction in employee complement may or may not have
been required, depending on how much work was done by Respondent's employees directly
for Progressive, the extent of which cannot now be ascertained. It does not however affect
the conclusion that on July 30, no layoff of employees was required because of lack of work.
264-047-67-vol. 162-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The alleged lack of funds to pay employees' salaries
The Respondent's answer alleges that it terminated all its employees on July 30
because "it had no funds with which to pay any additional salaries to the
employees."
In support of this contention President Keathley and Respondent's bookkeeper,
Wagner, both testified that on July 30, the day of the layoff, the Respondent's bank
account was overdrawn. Wagner testified that the amount of the overdraft before
the final payroll was $2,470.37 and that the July 30 payroll was $2,244.72.51 Thus,
according to Wagner's testimony the amount overdrawn at the bank after issuing
the final payroll checks was $4,715.09. Both Keathley and Wagner testified that on
August 2, the Monday following the layoff, Keathley deposited $3,750 of his per-
sonal funds "to cover the overdraft." However, this testimony did not withstand
close scrutiny. On later examination, Wagner conceded that there was in fact no
overdraft of funds at the bank because the Respondent had not sent out checks for
the withholding tax and "Tennessee unemployment." The amount of withholding
tax which was not then paid was $4,713.09, and that of the "Tennessee unemploy-
ment" was $775.76.52 Simple arithmetic therefore discloses, contrary to the testi-
mony of Keathley and Wagner, that the Respondent's bank account was not over-
drawn, and that there was a cash balance in the Respondent's bank account on
July 30 of $3,018.48,53 enough to cover approximately three regular weekly pay-
rolls for all of Respondent 's employees . In an attempt to explain her self-
contradictory testimony, Wagner testified that she knew on July 21 that Respondent
was not overdrawn at the bank, "when we decided not to pay the withholding and
the Tennessee Unemployment." The "we" obviously included Keathley, since he
was the only officer of Respondent who managed its day-to-day operations. More-
over, Wagner obviously had no authority to make such a decision alone. It is there-
fore, quite clear that on July 31 Keathley also knew that the Respondent was not
overdrawn at the bank. In the light of this attempted explanation, it is further
apparent that Keathley's and Wagner's testimony regarding the alleged overdraft,
not only was not true, but also was deliberately false and misleading. Moreover, a
few days after the layoff (sometime between August 2 and 12), the Respondent
admittedly received a payment of $6,500 for a machine which it had previously
shipped. Finally the Respondent adduced no testimony and produced no records
regarding its other accounts receivable or current assets at the time of the layoff.
All of the foregoing impels the conclusion that the Respondent's contention that
the layoff was required because there were no funds to pay employees' salaries is
devoid of merit and is another pretext.
However, in addition to the discredited testimony regarding the alleged over-
drawn condition of its bank account, the Respondent adduced additional testimony
regarding its many outstanding debts on July 30, by which it sought to convey the
implication that it was then in dire financial straits. Thus, Keathley further testified
that on June 17, Respondent received an 8-day extension of a $4,000 note owed
to the bank,54 and that on July 13, it borrowed an additional $4,900 from the bank
on a 90-day note. Keathley also testified that on the latter date, he was advised by
the bank manager that Respondent could obtain no additional loans above the
amount then owed. On cross-examination however, Keathley conceded that the
Respondent always had a line of credit with the bank. When asked what "the most"
was that Respondent ever owed the bank at one time, Keathley first professed
inability to remember. Upon further examination, Keathley finally admitted that in
1964, the Respondent owed the bank "12,000 or $14,000," and then gratuitously
added that this was when Respondent had contracts for machines. According to
Wagner however, on July 30, the Respondent's total indebtedness to the bank was
only $9,925, which amount included the last loan of $4,900 received on July 13
when Respondent concededly had no orders for machines to be manufactured.
Wagner also admitted that the Respondent's notes for these loans were for 90-day
periods and were renewable when due.
61 The Respondent's usual payroll was half this amount, but since it regularly holds
back 1 week's pay, the layoff required it to pay the employees for 2'weeks' work.
62 These indebtednesses were not paid by Respondent until December 31.
cs This cash balance was computed by using Wagner's figures for the amount allegedly
overdrawn before payroll (minus $2,470.37), and by adding thereto, the total of the two
bills which were admittedly not paid until December 31 ($5,488.85).
54 No explanation or testimony was given by the Respondent with respect to how this
obligation was met when it matured on June 25 , a month before the layoff.
K & M MACHINE COMPANY, INC. 99
In the light of this record, the Respondent has not established that the Respond-
ent's bank loans, either exceeded its normal borrowings, or disclose any dire finan-
cial condition of the Respondent. Moreover, in view of Keathley's deliberately
false testimony regarding the Respondent's overdrawn condition at the bank on
July 30, and the general unreliability of his testimony, I do not credit his uncor-
roborated testimony that he was advised on July 13 that Respondent could borrow
no additional funds from the bank. In any event, the foregoing record does not
establish as the Respondent contends, that it was without funds to continue to pay
salaries to its employees.
Finally, the Respondent, through its bookkeeper Wagner, adduced testimony
regarding the Respondent's other indebtedness, which included substantial amounts
which were past due on July 30.55 This testimony clearly disclosed only that the
Respondent had debts, but not that this was an unusual state of affairs, or that it
had no funds to meet the payrolls. The Respondent's 1964 Federal income tax
which was due on May 15, 1964, had not been paid by Respondent until Octo-
ber 11, 1964. The 1965 Federal income tax had been due since May 15, and the
other bills listed above were all past due, but the Respondent previously had been
able to defer the payment of such indebtednesses without a layoff of all its employ-
ees. It was not shown that Respondent was unable to defer the payment of these
bills. On the contrary, the record discloses as noted above that the Respondent did
not pay its withholding taxes and "Tennessee unemployment" until December 31.
Moreover, these same debts were past due when Respondent raised the salaries of
most of its employees on July 26, but that did not deter it from so doing. Obviously,
the Respondent then intended to continue operations for it would not otherwise
have taken the trouble to grant raises to employees whom it was going to terminate
4 days later. The conclusion is therefore inescapable that the layoff was not moti-
vated by these debts of Respondent.
Most significantly, the Respondent failed to produce its last financial statement
admittedly prepared at the close of the last fiscal year which ended on February 28.
Nevertheless, the record herein does show: (a) that the Respondent's financial con-
dition and credit standing was such that 2 weeks before the layoff it was able to
borrow $4,900 from the bank on its unsecured note; and (b) that although the
Respondent had operated at a loss in prior years, in the last 2 fiscal years, its opera-
tions had produced a profit, which, for the year ending February 28, 1965, amounted
to $10,163.57.
In view of all the foregoing, I reject the Respondent's contention that the layoff of
its employees was motivated by lack of funds to continue paying their salaries.
3. Conclusion
As found above, upon learning that Respondent 's employees were about to attend
a union meeting, President Keathley hastily assembled them at a meeting of his
own, asked them whether they wanted to be represented by a union and why, and
attempted to discourage their interest in union representation by promising and giv-
ing them wage increases , promoting one employee to foreman, and by suggesting
and sponsoring the formation of a little shop committee or union. Notwithstanding
the above , a majority of the Respondent 's employees thereafter expressed their con-
tinued interest in union representation by signing applications for membership in
the Union , and by paying an initiation fee to join . The Respondent , through its
Plant Superintendent Mainers and Foreman Nixon , acquired knowledge of this
renewed union activity by the employees . A few days later , on the same day that
Respondent received the Union 's demand for recognition and its offer to prove its
majority status by a card check, and only 4 days after giving its employees wage
increases , President Keathley notified all the employees that they were laid off for
lack of work, but immediately transferred two of them to the payroll of Progressive
to perform jobs previously performed by Respondent's employees, and assigned
supervisors to perform the work regularly done by production and maintenance
employees . The two thus transferred quite obviously were known by the Respond-
ent to have repudiated the Union by refusing , after initially signing authorization
5 These included, payments for two notes for shop-equipment, $425 ; franchise and excise
taxes to the State of Tennessee, $775.76, due since July 1; Federal corporate income tax,
$2,235.99 due since May 15 ; premiums for workmen's compensation insurance which had
been advanced by Respondent's director and insurance broker, Caldwell, $1,301 21 ; em-
ployees withholding and social security taxes, $4 ,713.09, due on July 31; and approxi-
mately $5,000 for materials.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, to sign applications for union membership . 56 Thereafter , when after 1 week,
the Respondent reinstated one machinist , it did not select Maynard , its most compe-
tent and highest paid employee who was the chief proponent of the Union, or even
its most senior machinist , Weir, but instead hired McFall , an employee with lesser
seniority who also had become disenchanted with union membership , and coinci-
dentally had been provided with interim employment by Respondent 's plant
superintendent 57
In view of all the foregoing , it is quite obvious and found that the July 30 lay-
off of employees was motivated by Respondent's opposition to the Union , and that
the manner in which reinstatement was later effected was likewise so motivated. As
the Court of Appeals appropriately said in its recent decision in Shattuck Denn Min-
ing Corp. v. N.L.R.B58
Actual motive, a state of mind, being the question , it is seldom that direct
evidence will be available that is not also self -serving. In such cases , the self-
serving declaration is not conclusive ; the trier of fact may infer motive from
the total circumstances proved. Otherwise no person accused of unlawful motive
who took the stand and testified to a lawful motive could be brought to book.
Nor is the trier of fact-here the trial examiner-required to be any more naif
than is a judge. If he finds that the stated motive for a discharge is false, he
certainly can infer that there is another motive. More than that, he can infer
that the motive is one that the employer desires to conceal-an unlawful
motive-at least where , as in this case , the surrounding facts tend to reinforce
that inference... .
Accordingly it is found that the Respondent discriminated against Alvin C. May-
nard, W. T. Avant, Charles J. Hobbs, Everett Weir, Charles R. Tapley, John L. Sul-
livan , Cecil McFall , Charles Goss, and John E. Fortwengler, to discourage their
membership in the Union , and thereby engage in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
H. Concluding findings in respect to Respondent's refusal to bargain
with the Union
The pleadings admit that the following unit of Respondent 's employees constitutes
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act:
All production and maintenance employees employed by the Respondent at
its Memphis plant, excluding all office clerical ' employees , professional and
technical employees , watchmen , guards and supervisors as defined in the Act.
As noted above, on July 14 and 15, 9 of Respondent 's 10 employees in the stipu-
lated appropriate production and maintenance unit signed cards authorizing the
Union to represent them . The 10th employee signed a card on July 26. The record
does not disclose that the signing of these cards was induced by coercion , fraud, or
misrepresentation , or that any of these authorizations was later revoked . By July 30,
when the Respondent received the Union 's demand for recognition and bargaining,
and offer to prove its majority status by a card check, the Union also had signed
applications for membership from seven of the nine employees who remained in the
unit after Nixon's promotion to foreman and supervisory status. Accordingly it is
found that at all times since July 15 , the Union represented a majority of Respond-
ent's employees in a unit appropriate for purposes of collective bargaining . Admit-
tedly , the Respondent never responded to the Union's demand . On August 3, the
68 In the light of Foreman Nixon's participation in the signing of the union membership
applications , and the small number of employees employed by the Respondent , it is quite
apparent and found that the Respondent had knowledge of the relative interest of its em-
ployees in the Union
w Mainer ' s attempted explanation that Maynard was not selected for reinstatement be-
cause he was not a willing or cooperative worker is regarded as unbelievable in the light
of Maynard 's recent wage raise, his highest pay status, and his 5 years of satisfactory em-
ployment by Respondent . Mainer's testimony that the Respondent does not have a
seniority policy is likewise not credited in the light of Tapley 's uncontroverted testimony
that he was told by Mainers that he would be the first to be laid off because he was the
last to be hired
-362F2d466 (CA.9).
K & M MACHINE COMPANY, INC. 101
Union filed a petition for certification as the collective-bargaining representative of
Respondent's production and maintenance employees, but it subsequently withdrew
its petition on August 24 59
The complaint alleges that the Respondent since on or about July 29 refused to
bargain with the Union as the exclusive bargaining representative of its production
and maintenance employees. The Respondent contends that it had "a good faith
doubt" of the Union's majority, that at a previous election, after a union claimed
majority status, the employees had voted not to be represented, and that in the
instant case, after the Union filed and withdrew its petition for certification, no fur-
ther demand was made for recognition or bargaining.
Absent a good-faith doubt of the Union's majority status, the Respondent was not
relieved of its obligation to recognize and bargain with the representative of its
employees merely because the latter, coincidently with its demand for recognition,
filed a petition with the Board for certification 6o Moreover, the Union's recognition
demand in this case specifically stated that it was a continuing one, and therefore
the failure of the Union to repeat the demand after withdrawal of its petition, did
not excuse the Respondent from bargaining, unless it had a good-faith doubt of the
Union's majority.
Thus, the only issue which remains for determination is whether the Respondent's
refusal to bargain with the Union was motivated by a good-faith doubt of its major-
ity status, or by unlawful considerations. The Board, in a recent decision,6' reiter-
ated the governing principles for determining whether such a good-faith doubt
existed, as follows:
The Board has long held that an employer may insist upon a Board election
as proof of a union's majority if it has a reasonable basis for a bona fide doubt
as to the union's representative status in an appropriate unit. If, however, the
employer has no such good-faith doubt, but refuses to bargain with the major-
ity representative of its employees because it rejects the collective-bargaining
principle or desires time within which to undermine the union and dissipate its
majority, such conduct constitutes a violation of Section 8(a)(5) of the Act.
In determining whether the employer's action was to achieve either of the said
invalid purposes, the Board considers all the surrounding circumstances as well
as direct evidence of motivation. Absent such direct evidence, where extensive
violations of the Act accompany the refusal to grant recognition, they evidence
the employer's unlawful motive and an inference of bad faith is justified .. .
Whether the conduct involved reflects on the good faith of the employer
requires an evaluation of the facts of each case.
Since the Respondent had knowledge, even before the Union's demand, of the
desire of all its employees to be represented by a union, and in the light of the
extensive violations of the Act committed by Respondent to discourage its employ-
ees from adhering to their desire for such representation, including the coercive
interrogation of employees regarding their union activities and sympathies, the
promising and granting of wage increases, the promotion of one employee to fore.
man, the initiation, formation, and domination of a shop 'union or committee, and
the discriminatory layoff of all its employees, it is quite evident and found that the
Respondent had no good-faith doubt regarding the Union's majority status, and
that the refusal to bargain was motivated by the Respondent's rejection of the prin-
ciple of collective bargaining. Accordingly it is found that the Respondent, by its
failure and refusal to bargain with the Union on and after July 30 (when it received
the Union's demand), engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.62
e' See footnote 26, supra.
w Galloway Manufacturing Corporation, 136 NLRB 405, 409, Crown Tar and Chemical
Works, Inc, 154 NLRB 562.
61 Hammond & Irving, Incorporated, 154 NLRB 1071 ; see also Aaron Brothers Company
of California, 158 NLRB 1077
swJoy Silk Mills, Inc, 85 NLRB 1263, enfd as modified on other grounds 185 F 2d
(C.A D C ), cert. denied 341 U S. 914. In view of this finding and the bargaining order
which will be recommended, I regard it unnecessary to consider the contention of the Gen-
eral Counsel that the Respondent further violated Section 8(a) (5) of the Act by unilaterally
granting the wage increase of July 26 without notice to or bargaining with the Union.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It also has been found that the Respondent discriminated against Alvin C. May-
nard, W. T. Avant, Everett W. Weir, Charles J. Hobbs, John L. Sullivan, Charles R.
Tapley, Cecil McFall, Charles Goss, and John E. Fortwengler by the layoff of these
employees on July 30. However, the record discloses that subsequent to July 30, the
Respondent might have been required to lay off some of the above-named discrim-
inatees for nondiscriminatory economic reasons. There is insufficient basis in the
record for determining either, whether such a layoff later was required, or if so, the
extent to which it would have affected the discriminatees, or some of them.63 Under
these circumstances, I will recommend that the Respondent be ordered to offer those
employees who were discriminatorily laid off on July 30, and who have not been
recalled for employment, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority and other rights
and privileges, and in the event that there is insufficient work for all such employ-
ees, to dismiss, if necessary all persons who were newly hired after the discrimina-
tory layoff of July 30. If there is not then sufficient work available for the remain-
ing employees and those to be offered reinstatement, all available positions shall be
distributed among them without discrimination against any employee because of
union or concerted activities, in accordance with the system of seniority or other
nondiscriminatory practices heretofore applied by the Respondent in the conduct of
its business. The Respondent shall place those employees, if any, for whom no
employment is available after such distribution on a preferential list, with priority
in accordance with such system of seniority or other nondiscriminatory practice
heretofore applied by the Respondent in the conduct of its business, and thereafter
offer them reinstatement as such employment becomes available and before other
persons are hired for such work.64
I will further recommend that the Respondent be ordered to make whole the
above-named discriminatees for any losses they may have suffered because of the
Respondent's discrimination, by the payment to each of them of a sum of money
equal to the amount that he normally would have earned as wages from the date of
such discrimination to the date of the offer of reinstatement, or placement on a
preferential list, as the case may be, less his net earnings during said period, the
backpay to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company.65 As it is possible, however, that one or
more of these discriminatees might have been laid off during part of the backpay
period even if Respondent had not engaged in any unfair labor practice, this possi-
bility should be taken into consideration in determining the amount of backpay
due to these employees 68 It will also be recommended that the Respondent be
ordered to preserve and, upon request, make available to the Board, all payroll and
other records necessary to determine the employment rights and backpay due to
these employees.
In view of the nature and extent of the unfair labor practices committed, and
because discriminatory layoffs and discharges go to the very heart of the Act, the
commission of other unfair labor practices reasonably may be anticipated. I will
therefore recommend that the Respondent be ordered to cease and desist from "in
e3 See footnote 50, supra
64 Myers Ceramic Products Co , 140 NLRB 232
11 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to the back-
pay to be computed in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716.
es These determinations, as well as those which may arise in respect to reinstatement, are
left to the compliance stage of this proceeding.
K & M MACHINE COMPANY, INC. 103
any other manner" infringing upon rights guaranteed to employees by Section 7 of
the Act, in addition to those rights found to have been violated herein.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Desoto Lodge No. 3, International Association of Machinists and Aerospace
Workers, AFL-CIO, and the Respondent's shop committee or union, are labor
organizations within the meaning of Section 2(5) of the Act.
2. K & M Machine Company, Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. The following employees constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed by the Respondent at its
Memphis plant, excluding all office clerical employees, professional and technical
employees, watchmen, guards, and supervisors as defined in the Act.
4. At all times since July 15, 1965, Desoto Lodge No. 3, International Associa-
tion of Machinists and Aerospace. Workers, AFL-CIO, has been the exclusive
representative of all the employees in the aforesaid unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
5. By refusing on-July 30, 1965, and thereafter, to bargain with Desoto Lodge
No. 3, International Association of Machinists and Aerospace Workers, AFL-CIO,
as the exclusive representative of its employees in the appropriate unit, the Respond-
ent has engaged and is engaging in unfair labor practices within the meaning of
Section 8 (a)(5) of the Act.
6. By discouraging membership in a labor organization through discrimination in
employment, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
7. By initiating, sponsoring, dominating, and interfering with the formation and
operation of, and contributing financial and other support to, the shop committee
or union , the Respondent has engaged and is engaging in unfair labor practices
within the meaning of Section 8(a)(2) of the Act.
8. By the foregoing unfair labor practices , and by coercively interrogating
employees regarding their union membership, activities , and sympathies , threatening
to close the plant if the employees chose to be represented by a union, promising
and granting wage increases , promoting an employee to foreman , all to discourage
employees from continuing their membership in or support of the Union, and by
assembling and detaining employees after hours for the purpose or with the fore-
seeable consequence of preventing or impeding their attendance at a union meeting,
the Respondent has interfered with, restrained, and coerced its employees in the
exercise of their rights under Section 7 of the Act, and has engaged and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
9. The unfair labor practices enumerated above are unfair labor practices affect-
ing commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , I recommend that the Respondent K & M Machine
Company, Inc., its officers, agents , successors , and assigns , shall:
1. Cease and desist from: '
(a) Discouraging membership in and activities on behalf of Desoto Lodge No. 3,
International Association of Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization of its employees, by laying off, discharging, or refusing
to reinstate any employees , or in any other manner discriminating in regard to hire
or tenure of employment , or any term or condition of employment.
(b) Dominating or interfering with the formation or administration of, or con-
tributing financial or other support or assistance to, the shop committee or union,
or any other labor organization of its employees.
(c) Coercively interrogating employees regarding their union activities and sym-
pathies , threatening employees with closure of the plant or other reprisals for
engaging in union activity, or promising 'or granting wage increases or promotions
to employees in order to discourage their activities in support of Desoto Lodge
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 3, International Association of Machinists and Aerospace Workers, AFL-CIO,
or any other labor organization.
(d) Refusing to bargain collectively concerning rates of pay, wages , hours of
employment , or other terms and conditions of employment , with Desoto Lodge
No. 3, International Association of Machinists and Aerospace Workers, AFL-CIO,
as the exclusive representative of its employees in the following appropriate unit:
All production and maintenance employees employed by the Respondent at its
Memphis, Tennessee, plant, excluding all office clerical employees , professional and
technical employees, watchmen , guards and supervisors as defined in the Act.
(e) In any other manner interfering with , restraining , or coercing employees in
the exercise of their right to self -organization , to form labor organizations , to join
or assist Desoto Lodge No. 3, International Association of Machinists and Aero-
space Workers , AFL-CIO, 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 engaging in such activities.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Upon request , bargain collectively with Desoto Lodge No. 3, International
Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive
representative of all the production and maintenance , employees employed at the
Respondent's Memphis, Tennessee, plant, excluding all office clerical employees, pro-
fessional and technical employees , watchmen , guards, and superviors as defined in
the Act, with respect to rates of pay, wages, hours of employment , and other terms
and conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement.
(b) Permanently withdraw from the shop committee or union, or any successor
thereto, all recognition as representative of any of Respondent's employees for
treating or dealing with Respondent in respect to grievances, wages, earnings, or
other terms and conditions of employment, and completely disestablish it as such
representative.
(c) Offer Alvin C. Maynard, W. T. Avant, Everett W. Weir, Charles J. Hobbs,
Charles R. Tapley, John L. Sullivan, Cecil McFall, Charles Goss, and John E. Fort-
wengler, to the extent it has not already done so, immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges previously enjoyed, and make them whole
for any loss of pay them may have suffered as a result of the discrimination against
them in the manner provided in "The Remedy" section of this Decision.
(d) Preserve and upon request, make available to the Board or its agents all
payroll and other records as set forth in "The Remedy" section of this Decision.
(e) Notify Alvin C. Maynard, W. T. Avant, Everett W. Weir, Charles J. Hobbs,
Charles R Tapley, John L. Sullivan, Cecil McFall, Charles Goss, and John E. Fort-
wengler, if presently serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as amended, after dis-
charge from the Armed Forces.
(f) Post at its plant in Memphis, Tennessee, copies of the attached notice marked
"Appendix." 67 Copies of said notice, to be furnished by the Regional Director for
Region 26, after being duly signed by Respondent, shall be posted by it for a
period of 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(g) Notify the Regional Director for Region 26, in writing, within 20 days from
the date of the receipt of this Decision, what steps it has taken to comply herewith.68
67 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" is the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
° In the event that this Recommended Order is' adopted by the, Board„ this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
K & M MACHINE COMPANY, INC. 105
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Desoto
Lodge No. 3, International Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, by laying off, discharging, or
refusing to reinstate any of our employees, or in any other manner discrim-
inating against our employees in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT recognize, treat, or deal with the shop committee or union, or
any successor thereto in respect to grievances, wages, or terms or conditions of
employment, and WE WILL permanently withdraw all recognition from said
committee or union, or successor thereto, as representatives of any of our
employees in respect to such matters, and WE WILL completely disestablish it.
WE WILL NOT coercively interrogate or poll our employees regarding their
union membership, activities, or sympathies, threaten them with plant closure
or other reprisals for engaging in union activity, or grant wage increases or
promotions to discourage our employees from joining, remaining members of,
or assisting Desoto Lodge No. 3, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Desoto Lodge No. 3, International Association
of Machinists and Aerospace Workers, AFL-CIO, or any other labor organiza-
tion, 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, and to refrain from any or all such activity.
WE WILL offer Alvin C. Maynard, W. T. Avant, Everett W. Weir, Charles
J. Hobbs, Charles R. Tapley, John L. Sullivan, Cecil McFall, Charles Goss,
and John E. Fortwengler, to the extent we have not already done so, immedi-
ate and full reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay suffered as a result of the
discrimination against them.
WE WILL notify Alvin C. Maynard, W. T. Avant, Everett W. Weir, Charles
J. Hobbs, Charles R. Tapley, John L. Sullivan, Cecil McFall, Charles Goss,
and John E. Fortwengler, if presently serving in the Armed Forces of the
United States, of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
WE WILL upon request, bargain collectively with Desoto Lodge No. 3, Inter-
national Association of Machinists and Aerospace Workers, AFL-CIO, as the
exclusive representative of all employees in the bargaining unit described
below, concerning rates of pay, wages, hours of employment, and other terms
and conditions of employment, and if an understanding is reached, embody it
in a signed agreement. The bargaining unit is:
All production and maintenance employees employed by us at our
Memphis plant, excluding all office clerical employees, professional and
technical employees, watchmen, guards and supervisors as defined in the
Act.
K & M MACHINE COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele-
phone 534-3161.