Laney & Duke Storage Warehouse Co., Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1965

151 N.L.R.B. 248 (N.L.R.B. 1965)

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The widow 's answer, in my opinion , reveals no information warranting any re-
duction in the amount of backpay awarded by the Board . It is concluded and
found that the Respondents have failed to sustain their burden in this matter.
AA. John D. Wells
In his notice of hearing the Regional Director noted that further investigation
established that Wells was not entitled to any of the backpay awarded him in the
Board Order , for reasons set forth in an appendix to the notice of hearing.
It is therefore concluded and found that the backpay claim as to this individual
should be dismissed.
BB. Russell T. Wood
By my order of June 18 , 1964, I granted the Respondents ' motion and ruled, in
effect , that because no answers to interrogatories were received all matters be deemed
as urged by the Respondents.
In his brief General Counsel states that he does not except to this ruling. It is
hereby reaffirmed , and it is concluded and found that the backpay claim should be
dismissed.
Laney & Duke Storage Warehouse Co., Inc., and Laney & Duke
Terminal Warehouse Co., Inc. and United Steelworkers of
America, AFL-CIO. Case No. 12-CA-2831. February °L5, 1965
DECISION AND ORDER
On November 13, 1964, Trial Examiner William Seagle issued
his Decision in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices alleged
in the complaint and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner further
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint and recommended that
the complaint be dismissed with respect to the latter allegations.
The Respondents filed exceptions to that portion of the Trial
Examiner's Decision in which they were found to have violated
the National Labor Relations Act, as amended, and filed a brief in
support thereof. The General Counsel thereupon filed cross-
exceptions, with supporting brief, to the Trial Examiner's failure
to find the remainder of the violations alleged in the complaint.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
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 cross-exceptions, the
151 NLRB No. 28.
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 249
briefs, and the entire record in this proceeding, and hereby adopts
the Trial Examiner's findings, conclusions, and recommendations.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order the Order recommended by the Trial Examiner, and
orders that the Respondents, Laney & Duke Storage Warehouse Co.,
Inc., and Laney & Duke Terminal Warehouse Co., Inc., their officers,
agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order with the following
modification :
The last sentence of paragraph 2(f) shall be deleted. The
following shall be added as the last sentence of paragraph 2(f) :
"The said notice shall also be read to each of the Respondents'
employees, singly or collectively, during the 60-day period in which
posting of the notice attached hereto it required." 2
IT IS HEREBY FURTHER ORDERED that the complaint herein be,
and it hereby is, dismissed insofar as it alleges violations not found
herein.
' The Trial Examiner has recommended that the notice "be read to such employees as
may request that it be read to them" in addition to the normal requirement of posting
the notice . The record demonstrates that many of the Respondents ' employees , to whom
this notice Is directed , are either illiterate or semiliterate . Accordingly, we agree that
the notice should be read to the Respondents ' employees . However, Inasmuch as
it is unlikely that these employees will otherwise be made aware of the existence of the
notice and of the right to have It read to them upon their request, we shall order, to
better effectuate the purposes of the Act, that the Respondents , whether or not requested
to do so, shall read the notice to each of their employees , singly or collectively, during the
period in which posting of the notice is required.
9 The last sentence of the body of the notice , dealing with the reading of the notice to
employees , shall be deleted.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Trial Examiner William Seagle heard this case at Jacksonville , Florida, on June 1,
2, and 3, 1964, on charges filed by the Union I and a complaint issued on April 23,
1964 , alleging that the Respondents had violated Section 8(a)(1), (3 ), and (5) of
the Act.
At the conclusion of the taking of testimony at the hearing, the General Counsel
presented oral argument and, subsequent to the hearing , counsel for the Respondents
and for the Union filed briefs which have been duly considered.
Upon the record so made, and in view of my observation of the demeanor of the
witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENTS
The Respondents , Laney & Duke Storage Warehouse Co., Inc., and Laney & Duke
Terminal Warehouse Co., Inc.-they will also sometimes be referred to hereinafter
i The original charge was filed on January 20. 1964: the first amended charge on
February 14, 1964 ; the second amended charge on April 13 , 1 964; and the third amended
charge on April 20, 1964.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as Laney & Duke-are Florida corporations whose principal offices and places of
business are located at Jacksonville, Florida, where they are engaged in the mer-
chandise warehouse business, and in the storing and handling of goods. The Respond-
ents operate a storage warehouse, which is located at 1560 Jessie Street, Jacksonville,
Florida, and also a terminal warehouse which is across the yard and 100 feet away
from the storage warehouse. The Respondents also operate another small ware-
house located on Bay Street in Jacksonville, Florida, and manage and control another
corporation, the M & M Terminal Warehouse Company, Inc. (hereinafter referred
to as the M & M warehouse), whose stock is owned to some extent by the officers and
directors of the Respondents.
During the last 12 months, the Respondents, in the course and conduct of their
business operations, have received gross revenues of $50,000 for services performed
in the handling and storage of goods and materials for enterprises located outside
the State of Florida which, annually, produce and ship directly to points within the
State of Florida goods and materials valued in excess of $50,000.
Laney & Duke Terminal Warehouse Co., Inc., is a subsidiary of Laney & Duke
Storage Warehouse Co., Inc., and both companies are operated as a single enterprise.
It is admitted that they constitute a single employer for the purposes of the Act, and
I so find
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor organization that has been
certified by the Board as the collective -bargaining representative of the employees of
the Respondents hereinafter described.
III. THE UNFAIR LABOR PRACTICES
A. Background
Laney & Duke have never entered into any collective-bargaining agreement with
any labor organization. In 1962, Local 512 of the Teamsters succeeded in orga-
nizing their employees, and won a Board-conducted election, after which the Union
was certified as collective-bargaining representative of the employees but, although
collective bargaining ensued, no collective-bargaining agreement resulted. The rea-
son for this appears to have been that the Laney & Duke negotiators would not agree
to any wage increases.
An employee negotiating committee participated in the negotiations between the
Teamsters and the employers. The most prominent member of this committee
appears to have been Herman Amos, one of the forklift or towmotor operators-
the terms are interchangeable-who had been employed at the storage warehouse
for about 41/2 years. Another employee by the name of James Kitchen was also on
the negotiating committee
About 2 months before the certification of the Teamsters was due to expire Thomas
H. Duke, Jr., vice president and treasurer of the Respondents and a son-in-law of
Albert H. Laney, president of the Respondents, approached Herman Amos, in the
warehouse where he was working, and remarked to the latter- "Amos, what do you
think about the union? I am getting sick. I have a headache. Why don't you go
down there and tell Bert Fowler to forget about the union, we can have our own." 2
To this proposal Amos replied: "Mr. Duke, you can forget about that because I am
not the type of man to do things like that." The following day Thomas V. Bingham,
vice president in charge of operations and warehouse superintendent for the Respond-
ents, also engaged Amos in conversation and renewed the suggestion of Duke.
Bingham, however, received a similar rebuff.
In his conversation with Amos, Duke had declared that he and Kitchen were free
to come to his office and talk to him at any time Consequently, a little later Amos
and Kitchen went to see Duke and asked the latter why they could not sit down and
negotiate a wage increase Duke replied that he could not offer them anything.
Actually, after the Teamsters had appeared on the scene, the Respondents had dis-
continued an annual 5-cent-an-hour automatic wage increase which they had been
giving to the employees the previous years. As Eddie Harrell, one of the forklift
operators in the storage warehouse, put it in his testimony: "Previously before the
Teamsters was voted in annually we were getting a five cent raise and when the union
was voted in that deceased [sic]."
After Duke had indicated that he would not negotiate any further, Amos took the
lead in bringing in another union. This was the Steelworkers Union. Amos talked
to some of his fellow employees about this and then contacted Oakley H. Mills, a
2 Bert Fowler was the representative of the Teamsters.
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 251
local staff representative of the Steelworkers. Mills told Amos that it would be
necessary to wait for the certification of the Teamsters to expire before they could
accomplish anything but he suggested that in the meantime they could get the employ-
ees to sign union authorization cards for the Steelworkers. Various employees of
the Respondents signed such cards 3 and a number of union meetings were held.
Under date of October 28, 1963, the Steelworkers filed a petition for certification
with the Board's Regional Office and under date of November 6, 1963, an amended
petition for certification. However, on November 15, 1963, the Steelworkers and
the Respondents executed a consent-election agreement, and pursuant thereto an
election was held in the shipping department of the storage warehouse between 4 and
5 p.m. on December 20, 1963. The employees of the Respondents eligible to vote,4
who numbered 54,5 voted in favor of the Steelworkers, the vote being 31 to 22.
Under date of December 24, 1963, the Respondents filed objections to the conduct
of the election on two grounds- (1) alleged coercive campaign tactics on the part
of the Union,() and (2) the wearing by Herman Amos, who had acted as observer
for the Union, of a union button which bore the legend "Vote USA," and which was
pinned immediately above his official badge as observer. Under date of January 17,
1964, the Regional Director recommended to the Board that the objections to the
conduct of the election be overruled, and that the Union be certified for the purposes
of collective bargaining as the exclusive representative of the employees in the bar-
gaining unit. Under date of March 24, 1964, the Board adopted the Regional Direc-
tor's recommendation and certified the Union.
B. Unfair labor practices prior to the election
The Respondents launched a campaign against the Steelworkers shortly after the
Union had petitioned for certification on October 28, 1963, and committed unfair
labor practices in the course of this campaign. The principal perpetrator of these
unfair labor practices seems to have been Thomas H. Duke, Jr., the vice president
and treasurer of the Respondents, but Albert H. Laney, the president of the Respond-
ents, and Thomas V. Bingham, vice president in charge of operations and warehouse
superintendent, also participated.
In the months prior to the election the Respondents employed seven or eight truck-
drivers. These were better paid than the warehouse employees, receiving 15 cents
an hour more than the latter. Significantly, Duke made his first approach to these
truckdrivers. Shortly after October 28, 1963, Duke called the truckdrivers into his
office and told them that he again had a union on his hands; that in fighting the
Teamsters he had had to pay $5,000 in lawyers' fees which he could have otherwise
used to give the employees raises; but that he would give the truckdrivers a 5-cent-
an-hour raise because, unlike the Steelworkers, who did not want the truckdrivers,
he wanted them. Duke even told Willie O'Neal, one of the truckdrivers, who is a
Negro, that there could not be any colored steelworkers. These representations were,
of course, false, since the Steelworkers were requesting the inclusion of the truck-
drivers in the bargaining unit. Duke also asked Willie O'Neal, as well as Nelson
Woolbright, another of the truckdrivers, to spread the word among the warehouse
employees that if they forgot about the Union they would get raises , too. Subse-
quently, the truckdrivers received raises of 5 cents an hour.
Duke also asked Woolbright in another interview, which took place the Wednesday
of the week before the election, to attend a union meeting which was coming up that
Saturday and report to him "what was doing over there." Woolbright, who was
already in debt to Duke, and who was repaying the loan in $5 a week installments,
which were being withheld from his wages, asked Duke for an additional loan of
$35, and Duke gave him the money. But on Friday of that week when Woolbright
was paid his wages, he found that $40 had been deducted. Woolbright appears to
' Seven of the cards are in evidence as General Counsel's Exhibits Nos. 18 to 24, in-
clusive They were all signed on August 31, 1963, except the card of Walter Harley, who
signed his card on December 23, 1963 These cards are those of the alleged discriminatees
whose cases are discussed infra; namely, Walter James Harley, Quentin Nealy, Herman
Amos, Allen J. Rose, Willie Pollard, Walter Lee Johnson, and James McMillan.
'These included all employees of the Respondents at their Jacksonville, Florida, ware-
houses including warehousemen, shipping and receiving clerks, and truckdrivers but exclud-
ing office clerical employees, salesmen, guards, and supervisors as defined in the Act
' The ballot of one of the eligible voters was, however, challenged. This voter was
Walter James Harley, who was challenged by the Respondents.
'This objection to the conduct of the election was, however, withdrawn pilor to the
Regional Director's decision.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been indignant about this and reported it at the union meeting. The following
Monday, which was the Monday of the week before the election, Duke told Wool-
bright that he had learned that he, Woolbright, had been shooting his mouth off
about the money he had taken out, and that he considered that Woolbright had let
him down.
Two or three weeks before the election Duke came over to the Bay Street ware-
house where there were only three employees and talked to them as a group in the
presence of their immediate supervisor, Buddy Hoffman. Duke told the three Bay
Street employees in substance that the Steelworkers could do nothing for them and
that they should forget about the Union so that they could all have a nice Christmas.
Duke also told them, as he had already told the truckdrivers, that he had had to take
$5,000 of their money in order to fight the Teamsters.
About a week before the election Duke conducted also a grand interrogation of
most of the warehouse employees who were called into his office one by one. The
general purpose of each interrogation was to ascertain if possible how the particular
employee stood with reference to the Union and, if favorably inclined, to dissuade
him from supporting the Union, either by reminders of past and future benefits or
by threats of reprisal, if necessary. What Duke said to each employee varied some-
what but in each case he followed a set pattern. After dwelling upon the trouble
which he had had the previous year with the Teamsters, Duke would relate how he
had to spend, in order to defeat them, $5,000 in lawyers' fees which would otherwise
have been used to give them raises. It seems that the Respondents also had some
kind of a profit-sharing plan, and that the share of each employee was recorded in
a book. Duke would show each employee his profit-sharing book, and point out
to him how big his share was. He would also tell each employee that if he voted
against the Union they would all have a nice Christmas.
In the case of some of the employees, however, Duke went far beyond the set
pattern. To a number of the employees he made statements that were in effect
explicit threats of discharge if they supported the Union, or promises of benefits in
various forms if they refrained from supporting the Union.
Thus, in his interview with Quentin Nealy, one of the forklift operators, Duke,
after remarking that, although there were one or two employees still straddling the
fence, they would be voting "No" before it was all over, intimated that one day
Nealy might receive a letter in the mail informing him that he was discharged. In
interviewing Allen J. Rose, another one of the forklift operators, Duke told the latter
that there was no point in talking to Amos and Kitchen because he knew that they
were for the Union-indeed Duke told Rose that "he had talked to most of the fel-
lows and most of the fellows were going along with him on this union-and that he
would fire Amos and Kitchen the first chance that he had." Duke made a similar
remark about Amos and Kitchen to Willie O'Neal and, in the midst of talking about
the Union, also remarked that if he had a mind to be nasty he could go out on the
street corner and replace all the men. Duke added, however: "I am not going to
be nasty."
Some of the employees were interrogated by Laney, as well as by Duke, and two
of these employees, Eddie Harrell and Walter Lee Johnson, both of whom were
forklift operators, testified concerning their experiences. Like Duke, Laney dwelt
upon the lawyers' fees, the profit-sharing, and his expectations concerning a good
Christmas but he, too, went far beyond this pattern.
Laney asked Harrell how he thought the other fellows would vote, and mentioned
in particular the names of two of the employees, James Nixon and Willie Glanton.7
Harrell told Laney that he thought these two employees would vote for the Company,
although he himself volunteered that he had signed a union card. After showing
Harrell his profit-sharing book, Laney suggested that he show the book to the fellows
in the warehouse and tell them that the Company would support them "in any trouble
they had." Laney specifically asked Harrell to tell them that the 5-cent-an-hour
automatic annual increase that was in effect before the Teamsters came in would be
restored if they voted for the Company. Another change that had come about since
the Teamsters were voted in was that loans from the Company had become more
difficult to obtain. Encouraged no doubt by the fact that he was being asked to do
missionary work among the employees, Harrell asked Laney for a loan of $75. Laney
said that he would make the loan $100, and asked Harrell to pass around the word
that the "fellows" could still get loans from the Company.
T He appears in the transcript as "Will Gladden" (at page 177) but it would seem that his
name was misheard and misspelled. A "Willie Lee Glanton" appears on Respondents'
Exhibit No 8, a list of the employees who were on the payroll the week ending Novem-
ber 14, 1964.
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 253
In his interview with Johnson, Laney asked this employee whether he was for the
Union or the Company, and remarked that he would hate to see the Union come in
and have to fire all of them. Johnson testified that he told Laney in answer to his
question whether he was for the Union that he "had to go with the rest of them."
However, in his prior statement, Johnson had deposed that he had told Laney that
he was for the Company. It is possible that Johnson's recollection was at fault, or
that he made both statements to Laney in the course of the interview.
Under date of December 18, 1963, which was 2 days before the date of the elec-
tion, Duke sent all the employees a circular letter reading as follows:
Friday is election day again. It seems like every year another union shows
up with a lot of big talk and starts taking YOUR money in union dues. Last
year it was the Teamsters union that did a lot of big talking and taking and then
pulled out. This year its the Steelworkers union that has a lot of big talk for
everybody. But that's all the union has for you-a lot of big talk.
The union or its helpers may have told you that you have to vote for the union
if you signed a card or went to a meeting. THIS IS A LIE. You can still vote
the way you want to. You may also have been told that you will be fired unless
you vote the union in. You know that this is another lie. Haven't you had
enough union lies?
This year I am going to ask each of YOU to give the Company a Christmas
present by voting against the union and for your Company. Let's make it a
good Christmas for all and start the New Year off right.
Wishing you and your family a Merry Christmas, I am
Very truly yours,
T. H. Duke, Jr.
Despite the extensive interrogations of the employees by Duke and himself, Laney
also decided to address all the employees as a group on the day before the election.
This speech was delivered to the employees at the front of the storage warehouse
shortly after 8 a.m. on December 19. Duke and Bingham were also present on this
occasion. According to Laney, he merely delivered a prepared talk in the text of
which he asked the employees to do him and Duke the big personal favor of voting
against the Union; referred to the Teamsters' lack of success the previous year;
explained that the Steelworkers, like the Teamsters, was only interested in dues and
initiation fees, and had in fact struck the Ivey Steel and Wire Company solely to
enforce the checkoff of union dues; and concluded by asking the employees to keep
pulling together "so we will all have a nice Christmas and a Happy New Year."
There is reason to doubt, however, that Laney adhered entirely to his prepared
text. In fact this text which is in evidence 8 bears in the upper right-hand corner the
notation: "Proposed outline of speech to be given by Mr. Laney...." [Emphasis
supplied.] When Laney was asked, moreover, whether he had said anything extem-
poraneously "in addition to what was in this document," he testified: "If I did, it
was very short and I don't remember." Pressed again to state whether he had made
any extemporaneous remarks in his speech, Laney, in denying it, explained: "I am
pretty sure of that because I stuck right to the notes." [Emphasis supplied.] How-
ever, notes do not, in themselves, constitute a speech. Furthermore, the testimony
of a number of the employees shows that Laney went beyond his notes, at least to
some extent. Thus Nealy summarized what Laney had had to say as follows: "Isn't
but one way for us to vote and that is to vote no, and he would appreciate it if we
would vote no, and if we did, he would guarantee we would have the best Christmas
we had ever had in our lives " Willie Pollard, another of the forklift operators, even
testified that Laney said in his speech that "the company wouldn't-would loan us
money and the union wouldn't," and Johnson testified that Laney said "he wasn't
going to have any union in there."
Johnson also testified with respect to an incident that occurred just before Laney
commenced his talk. It seems that one of the employees by the name of Eugene
Thompson had told Bingham that one of the extra or casual employees who was
present was "pimping" for the Union, and this employee was therefore sent home.
If everything that Laney would say was to be open and aboveboard, it is hard to
understand the reason for this precaution.
On the eve of the election, Bingham personally also distributed copies of a Santa
Claus card and a booklet with the title "What the Steelworkers Union can do for
YOU." 9 The Santa Claus card bore in its center a drawing of Old Nick with the
8 As Respondents' Exhibit No 7.
9 This occurred, apparently, in the early afternoon of the day of the election but two
witnesses, whose memory was probably at fault, testified that it occurred the previous day.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legend on his beard "Vote No!" Above the drawing were the words: "WAGE IN-
CREASES Come Only From COMPANY PROFITS," and below the drawing were
the words: "The Union's NO SANTA CLAUS." The Steelworkers booklet con-
tained nothing but four totally blank pages.
The day of the election, which fell on a Friday, happened also to be payday.
Mills, the union representative, was aware of this and he had requested that the
paychecks be withheld until after the employees had voted, and the management had
agreed to do so. Ordinarily the paychecks were distributed to the employees by
Bingham but on the day of the election, and after the voting had taken place, Laney
himself went among the employees to distribute the paychecks to them.'° However,
in the early afternoon, Bingham had gone among the employees, and whispered to
each of them that Laney had bonus checks for them in the office if they voted the
right way. It was while he was engaged in this whispering campaign that Bingham
distributed the Santa Claus cards, apparently. However, when the employees opened
their pay envelopes, they found that they did not contain any bonus checks.
It requires no detailed analysis to establish that the preelection tactics of the
Respondents constituted gross violations of Section 8(a)(1) of the Act. Not only
were the employees suspected of union leanings interrogated but the opportunity was
seized to attempt to deceive, confuse, and terrorize them with an admixture of
promises of benefits and threats of reprisals. Their aid was also enlisted to fight the
Union by methods which even included encouragement to report what happened at
union meetings. As the election was scheduled in the week preceding Christmas,
moreover, use was even made of the Christmas spirit and the mutual exchange of
gifts that is part of that spirit to mask the promises of benefit which were being made.
Furthermore, the Respondents did not even intend to make good on these promises,
such as the payment of a bonus and the revival of the 5-cent-an-hour annual wage
increase. As for the deprivation of benefits in the past, these, too, were disguised
as the payment of legal fees.
As would be expected, the public utterances of Duke and Laney-Duke's circular
letter of December 18 and the written text of Laney's speech of December 19-were
somewhat more cautious than their private remarks to the employees who were sum-
moned to their offices. What was made explicit in the private conversations was
glossed over, however, in the public prints and utterances. But the essential message
was the same, and this message was that the Steelworkers, like the Teamsters before
them, would avail them nothing, and that they must look to the Respondents if they
wished to obtain any benefits, and have a big Christmas. The testimony of some of
the employees shows, moreover, that this was the interpretation which they actually
put upon Laney's remarks. The Santa Claus cards and the blank Steelworkers book-
let, taken in conjunction, represented only a more graphic way of bringing home the
same message.
It is also an unusual aspect of the present case that the activities and utterances of
the principal architect of the unfair labor practices stand wholly uncontradicted.
While the hearing was m progress, Duke preferred, apparently, to remain on the
west coast, where he was attending to business matters, rather than to return and
face his accusers. Laney and Bingham, the lesser figures, did attempt to deny, for
the most part, the unfair labor practices in which they had engaged but I cannot
credit their denials. Laney revealed an obviously infirm memory, and Bingham
involved himself in so many contradictions and evasions that little of his testimony
can be regarded as credible.
C. Unfair labor practices after the election
1. The discharges of Johnson, Nealy, Rose, and Pollard after the institution
of the night shift on January 17
The Respondents are charged also with the discriminatory discharges of four
employees, Walter Lee Johnson, Quentin Nealy, Allen J. Rose, and Willie Pollard,
in connection with the establishment of a night shift on January 17, 1964. Johnson
and Pollard were forklift operators, while Nealy and Rose appear to have been ware-
house laborers who unloaded trucks or boxcars.
Johnson, Nealy, Rose, and Pollard were all union members who had joined early
in the union campaign--on August 13, 1963. Indeed Rose and Nealy signed their
union cards at the same time as Herman Amos. It is also affirmatively shown that
"Laney himself could not recall that he did so but there is no doubt that he did.
Even Bingham, who was not inclined to admit very much, testified that "Mr. Laney was
paying off that evening in lieu of me."
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 255
Johnson, Nealy, and Pollard also attended several union meetings," about which
Duke and Laney were undoubtedly receiving reports, and Pollard spoke to fellow
employees in favor of the Union. All four of the employees had been interrogated
by Duke or Laney or by both of them, and to two of them, Nealy and Johnson, Duke
or Laney had plainly intimated that some of the employees might find themselves
among the unemployed. When he was interrogated by Laney, Johnson admitted to
the latter that he had attended union meetings.
There had been no night shift in the storage warehouse of the Respondents at the
time of the election on December 20 But the institution of a night shift came under
consideration either late in November or early in December 1963, and just before
Christmas Bingham mentioned the subject to Ernest S. Stripling, one of the two
receiving clerks in the receiving department of the storage warehouse. Stripling
greeted the news without enthusiasm but told Bingham that if the Company wanted
a night shift he would take it and do the best he could with it.
Stripling had been in the employ of the Respondents at this time for about 11 years.
The other receiving clerk was Gerald ("Jerry") Coleman, who had been in the
employ of the Respondents for about 8 years. Although there were two receiving
clerks, their functions do not appear to have been sharply delimited. Stripling gen-
erally received goods and materials that arrived in boxcars, while Coleman generally
had charge of unloading the trucks. Stripling and Coleman each had his own crew
but sometimes a particular employee would be transferred from one crew to the other.
Shortly after 9 a.m. on the morning of January 16, 1964, Bingham himself posted
on the warehouse bulletin board the following notice
January 16, 1964
NOTICE
The Company has decided to put on a night shift beginning Friday Janu-
ary 17th, and will need 7 men for this work. In line with our past practice, we
will pay a five cents (50) per hour premium for such work.
The shift will begin at 4:30 P.M. and will end at 1:00 A.M. with thirty (30)
minutes off for supper. The type of work will be unloading and any other type
needed, taking the place of the day unloading crew.
If you are interested in this work you may sign below and will be considered
according to ability and seniority. Those interested, sign up TODAY Thursday
January 16, 1964.
Work force needed 3 forklift drivers and 4 warehousemen.
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Stripling saw this notice between 3 and 3:30 p.m. of January 16, and talked to
Bingham about it. Bingham told him not to report for work the following day until
4-30 p.m., when the night shift was to begin. Stripling then said to Bingham: "Mr.
Bingham, I want my same old crew." Bingham replied, "All right" or "Okay."
At this time two members of Stripling's crew, Walter Lee Johnson and Quentin
Nealy, were working in a boxcar, and Stripling went over to them and told them
about the conversation that he had just had with Bingham. He also directed them
to report for work at 4:30 p.m. the next day. Both Johnson and Nealy had already
seen the notice on the bulletin board, when Stripling spoke to them, and they agreed
to report for work at 4:30 p.m. the next day. Stripling himself could not recall
whether any members of his crew had specifically asked him whether they should
sign the notice but both Johnson and Nealy testified that they raised this question,
and that Stripling told them either that he did not know, or that he saw no need for
them to sign the notice. There is no good reason for doubting the testimony of
Johnson and Nealy on this point but it is really immaterial, since Stripling, with the
approval of Bingham, had told them to report for work on the night shift which was
to start the following day.
There were also two members of Coleman's crew, Allen J. Rose and Willie Pollard,
both of whom had previously worked under Stripling, and who, after seeing the
notice, spoke to Coleman about it and were told by him to report for work on the
night shift at 4:30 p.m. the next day. Indeed, in order to make sure that there was no
misunderstanding, Rose asked Coleman before he left work on January 16 whether
?1 Counsel for the General Counsel did not ask Rose specifically whether he had attended
union meetings.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was to report for the night shift and received a reply in the affirmative. In view of
this, neither Rose nor Pollard signed the notice, or even asked Coleman whether they
were supposed to sign the notice. I do not credit the testimony of Coleman that he
had a conversation with Eddie Harrell and Willie Pollard in which they asked him
whether they were supposed to sign the notice. As a matter of fact, Coleman told
Harrell, who had signed the notice, and who was anxious to get on the night shift,
that he would bring in his regular daytime crew. Harrell then went to see Stripling
who told him that he could replace Cleveland Belmond , a member of the crew who
was out with an injury.
Johnson, Nealy, Rose, and Pollard reported for work on the night shift before
4:30 p.m. on January 17, and all four of them had the same experience, which, in
view of what they had been told by Stripling and Coleman, they could hardly have
anticipated. All four of them, when they reported for work, found their timecards
missing from the rack. When they inquired from Stripling or Coleman as to the
reason for this, they were either told to wait or that it was because they had failed
to sign the notice. After they had waited about 10 or 15 minutes Bingham came out,
handed them their paychecks, and told them they were fired because they had failed
to sign the notice, and the Company had assumed that they no longer wanted to
work. According to Nealy, Bingham remarked- "You have had it." According to
Pollard, Bingham remarked, "That is it." Bingham left no doubt in their minds that
their employment was terminated.
From the fact that Stripling and Coleman were at the scene when the night shift
commenced at 4.30 p.m. on October 17, it may perhaps be inferred that they had
signed the notice on January 17. Actually, however, although both Stripling and
Coleman had seen the notice, neither of them had deemed it necessary to sign it.
Yet Bingham had not fired them for failing to sign the notice. The Respondents
contend that Stripling and Coleman were not supervisory employees within the
meaning of the Act, and this contention would seem to be correct. While they super-
vised the crews under them, the supervision was of a routine nature, for they simply
carried out the orders which were daily given to them by Bingham who described
them correctly as pushers, and the record shows that they voted in the December 20
election with the other rank-and-file employees But, if they were not supervisory
employees, it is difficult to perceive why they were not required, if they wished to
retain their jobs, to sign the notice, since it did not exempt anyone from its supposed
requirement.
Although Bingham's position was, evidently, that it was up to any employee who
wished to work on the night shift to sign the notice, and that his role was entirely
passive, the record reveals that Stripling and Coleman were not his only inconsis-
tencies. After Harrell had signed the notice, Bingham came to him and asked him
why he had put his name on the list. Harrell replied that the list called for volun-
teers, including forklift operators, and he was a forklift operator. Bingham then
told Harrell that he did not want him to work on the night shift, that he would rather
have him on the day shift Later in the day, however, Bingham came around again
and told Harrell that he could work on the night shift As for Nunnally, who was
a very old employee, Bingham went to him and told him to sign the notice if he
wished to work on the night shift Bingham explained that the reason why he showed
such solicitude in the case of Nunnally was that he knew that this employee could
not read. But Johnson, who was also a very old employee, deserved the same solici-
tude. He had left school at the age of 12 when he was in the second grade, and he
could only read a little bit; when he gave a statement to a Board agent prior to the
hearing, it had to be read to him and he only "catched" the biggest part of it, as he
testified. Rose, too, would seem to have deserved some special consideration, for he,
like Johnson, could read a little only, and he had just "glimpsed" at the notice, as
he put it.
Bingham was guilty also of at least two more glaring inconsistencies in his treat-
ment of the notice. On January 16, the day that he posted the notice, Bingham went
to an employee by the name of Otis Hamilton, who was then working as an extra
at the Laney & Duke storage warehouse on Bay Street, and asked him if he wanted
a regular job, although it would entail working at night. Hamilton replied: "I would
rather have a regular job than an extra job. I have bills. I can't meet them with
extra jobs." Bingham thereupon instructed Hamilton: "You come at 4:30 tomorrow
afternoon and I will put you on night." [Emphasis supplied .] This conversation
between Hamilton and Bingham occurred between 2:30 and 3 p.m. on January 16.
When Hamilton had been interrogated by Duke prior to the election concerning his
knowledge of union activities, he had told Duke: "I don't know anything, you can
count me out . You will have to find somebody with better qualifications."
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 257
The other of the glaring inconsistencies occurred on January 17. Bingham had
declared in his notice in capital letters that it had to be signed "TODAY" (namely,
January 16). But when on January 17 Cleveland Belmond, the injured employee,
came in to collect his paycheck, Bingham permitted him to sign the notice nunc pro
tunc, although the deadline had clearly passed.
In any event , although Bingham 's notice had stated that the work force needed
would be three forklift operators and four warehousemen, only five of the employees
had signed the notice by the close of business on January 16. These five were O. G.
Jones, a casual employee in the receiving department; James Allen and Rollie Mack
Daris, who were both regular truckdrivers; Eddie Harrell, who was a warehouseman
and forklift operator during the daytime and who combined unloading with ship-
ping; and Dose Nunnally , the warehouse laborer whose signature Bingham himself
had procured.
Actually, only three of the signers of the notice, O. G. Jones, Harrell, and Nun-
nally were put on the night shift when it started at 4.30 p.m. on January 17. The
other two signers, Allen and Davis, were not put on the night shift because they were
truckdrivers and, as such, were receiving a considerably higher rate of pay. Thus,
Bingham was able to recruit from the signers of the notice only three employees for
the night shift, only one of whom, Nunnally, had been a regular on the daytime
receiving crew. Although the notice had stated that seven men would be required,
Bingham actually needed nine men, and it was necessary, therefore, for him to find
six others. The six other men who were put on the night shift on January 17, none
of whom had signed the notice, were Otis Hamilton, who had been an employee at
the M & M warehouse but who had been laid off; Troy Lanier, a casual employee,
who also was on layoff from the M & M warehouse; Joe Tanner, who had been a
casual employee at the storage warehouse; Willie Jackson, who had also been a
casual employee at the storage warehouse; York Adams, a casual employee on lay-
off from the M & M warehouse; and John Jones, still another casual employee from
the M & M warehouse.
As might have been expected, there were changes in the night shift after it was
established on January 17. Joe Tanner was sent to the Laney & Duke terminal
warehouse in exchange for Ernest Wells, who was then a regular employee of this
warehouse. York Adams was discharged in February 1964 and an employee named
John Lee Fannel or Fanneil, who had been a casual laborer at the M & M warehouse,
was hired to replace him. There must also have been other changes.12 So pressed
was Bingham for securing adequate help that he even approached Harrell and asked
him if he knew of a forklift operator.
The night-shift crew was thus recruited almost entirely from casual and laid-off
employees, most of whom had not even worked directly for the Respondents but for
the M & M warehouse. It would be surprising to find that they proved very satis-
factory. Actually, Stripling had a very poor opinion of the replacements for John-
son, Nealy, Rose, and Pollard. Asked to compare the experience and efficiency of
the new crew on the night shift with the old crew on the day shift, Stripling replied:
"It has been pretty rough, not knowing what to do and how to do it. You have to
stand and watch them, follow the motor around and make sure it was put in place.
The old crew knew where everything went. You didn't have to follow them "
On the other hand, Stripling had a very high opinion of Johnson, Nealy, Rose,
and Pollard, the four terminated employees. All of them, except Johnson, had been
with the Respondents from 3 to 4 years, and Johnson had been with the Respondents
for over 11 years.13 When Stripling was asked for an opinion concerning their skills
and capacities, he praised them very highly. With respect to Johnson, he testified
that he was "one of the best men I have ever worked with," and "one of the best
towmotor operators we have had," and when Stripling was asked about the other
three, he declared that he could say the same about them. Since Stripling himself
had been with the Respondents for 11 years, he was in a particularly good position
to evaluate their worth.
It would seem to be a work of supererogation to have to demonstrate that the real
motive of the Respondents in instituting the night shift and selecting its crews was
to get rid of a number of the union adherents. The only arguable question would
seem to be whether the institution of the night shift itself had any legitimate opera-
"As related infra, James McMillan was hired several weeks after the commencement
of the night shift
13 FIe had first been employed in 1946 , and had worked continuously for the Respond-
ents since then except for 1 year ( either 1956 or 1957 ) when he had had to go home to
see about his mother.
783-133---66-vol. 151-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional objective, such as improving efficiency, as the Respondents contend. A pre-
ponderance of the evidence would seem to support the conclusion that this question
should be answered in the negative. If the scheme of the night shift were wholly
unrelated to the union situation, Bingham would not have posted the notice at all.
He would simply have told Stripling and Coleman that the daytime crews would
have to work at night on and after January 17. He would have resorted to the
posting of a notice only if he met resistance to working on a night shift, which, as
events proved, was an unlikely contingency. The attempt to explain the necessity
for posting of the notice in terms of the desirability of affording the receiving crews
a choice must, clearly, be rejected because in fact there was no choice. This is
apparent from the fact that the failure to sign the notice was to be the equivalent of
quitting the job. Even more convincing proof of the ulterior motives of the Respond-
ents in the establishment of the night shift lies in the fact that Bingham told Stripling
that he could have his night crew, and then, so to speak, doublecrossed him. This is
a plain indication that in the establishment of the night crew Bingham was simply
engaged in laying a trap into which, he hoped, the union supporters would fall.
It is not necessary, however, to find that the establishment of the night crew had
no legitimate basis in operational factors, for the conduct of the Respondent would
be no less unlawful if they seized the opportunities involved in its establishment to
get rid of some of the union adherents. Of this there can be, certainly, no serious
doubt. According to the wholly undisputed testimony, Bingham himself played
favorites in interpreting the requirements of the notice, and thus discriminated in
the very process of selecting the members of the night crew and, when the process of
selection had been completed, Bingham had gotten rid of four experienced and highly
competent employees, one of whom had been employed for over 11 years, and
replaced them, apart from Dose Nunnally, with crews consisting of casual or extra
employees, or laid-off employees who were not equal to their jobs. Bingham stuck,
moreover, to his crews of casuals although the regular and efficient crews had
reported for work, and were on the premises ready, willing, and able to work. Bing-
ham, instead of breathing a sigh of relief, fired them. This could hardly be regarded
as rational behavior.
When he was asked whether he regarded as fair the method that he had followed
in recruiting the crews for the night shift, Bingham answered: "Certainly I did."
Whether this method was fair is, however, really immaterial, since Bingham did not
actually follow it, as is shown by the testimony of Stripling and several other wit-
nesses. But even if Bingham had strictly followed the procedure outlined in his own
notice, it could hardly be regarded as fair. It is true that it was stated in the notice'
"The type of work will be unloading and any other type needed, taking the place of
the day unloading crew." This statement runs in terms of a type of work and of
single unloading crew, and it did not constitute, therefore, a clear and unambiguous
description of the precise work done by the two daytime crews in the receiving
department. Indeed, the receiving department is not mentioned as such in the
notice. There is in the notice, moreover, no plain and explicit warning that any
members of the receiving crews who did not volunteer for the night shift by signing
their names to the notice would be discharged. Such a warning was necessary
because the abolition of the jobs of the daytime receiving crews would not mean
ipso facto the discharge of the employees who had filled them, since other jobs might
well have been found for them. One source of such jobs would have been the vacan-
cies resulting when other employees volunteered for the night shift. In addition to
their regular employees the Respondents always employed, moreover, a considerable
number of extra or casual laborers during their daytime operations. Indeed, John-
son, Nealy, Rose, and Pollard thought that the notice was intended to allow these
extras to volunteer for the night shift. It is easy enough to say that the notice itself
was not so limited, and that there was no justification for such an interpretation. But
it must not be forgotten that the notice was not addressed to university graduates but
to illiterate or semiliterate Negro laborers. Indeed, Bingham himself did not con-
tend that he had no work for Johnson, Nealy, Rose, and Pollard. Thus, he testified:
Q. . . . Were Johnson , Pollard, Nealy and Rose terminated for lack of woik?
A. They were terminated because they did not ask for work. Their daytime
job was abolished, the night job took the place of the day work and those inter-
ested in that work were asked to work and I assumed they did not like night
work and had quit.
Q. Not that you were discharging them for lack of work, but that they had
quit.
A. Yes, they didn't show up for work.
[Emphasis supplied.]
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 259
The only truthful part of this testimony is that there was no lack of work. John-
son, Nealy, Rose, and Pollard had not quit; they had in fact shown up for work.
Indeed, Bingham was driven, finally, to testify that the four had quit only because
they had shown up for work and work was available for them.
The Respondents make much of the fact that there is no direct evidence that they
had knowledge of the union affiliation of Johnson, Nealy, Rose, and Pollard. This
is true but, as to these four employees, there is strong circumstantial evidence that
the Respondents must have known either that they were union supporters, or that
the daytime receiving crews were rife with union supporters. This circumstantial
evidence includes not only interrogation but also threats of discharge and the encour-
agement of tale-bearing as to what occurred at union meetings. The conduct of the
Respondents in discharging Johnson, Nealy, Rose, and Pollard was, moreover, so
completely irrational, that it can be explained only by a desire to undermine the
strength of the Union. It is not necessary to show direct knowledge in such circum-
stances.14
2. The distribution of the employment application forms and the
first suspension of Amos
On Friday, January 24, 1964, which was both a week after the institution of the
night shift and a week after the Regional Director had certified the results of the
election and had recommended that the Respondents' objections to the conduct of the
election be overruled, the Respondents distributed to each of their employees at the
storage warehouse a four-page employment application form with instructions to
fill it out and return it by the following Monday.
This employment application form was a rather formidable document. The first
page of the application was divided into three sections by heavy black lines. In the
first section the applicant was required to state his name, present address, last pre-
vious address, and how long he had resided in Jacksonville, Florida; in the second
section the applicant was required, among other things, to indicate the position he
desired and when he could report for work if employed; and in the third section the
applicant was required to furnish a considerable variety of personal data, including
data relating to his marital status, religious preference, citizenship, home ownership,
debts, automobile ownership, and previous criminal charges or arrests, if any. The
second page of the employment application form contained two blocks headed, respec-
tively, "Education and Training" and "Employment History." In the first block
were lines on which the applicant was required to indicate whether he had attended
elementary school, junior high school, senior high school, college, night school, or
a trade-business correspondence school. On a number of lines under this block, the
applicant was required to indicate whether he had had special courses or training or
mechanical experience, and also what his outside interests and activities were The
"Employment History" block called for information by the applicant with respect
to his employment history for the past 10 years, whether he was presently employed,
and, if so, his reason for wishing to leave his employment. On the third page of the
application, the applicant was required to give a very detailed account of his medical
history, to indicate his military service record, and to supply details concerning his
family for purposes of group insurance. On the fourth and last page of the employ-
ment application form the applicant was required to give three personal refeiences
and three credit references and to subscribe to various understandings or require-
ments affecting the terms or conditions of his employment. Thus, he had to agree
to take either mental examinations or polygraph tests at the Company's expense, or
to resign immediately upon refusing to take such tests; to authorize a full investiga-
tion and to agree that his employment would be probationary for a period of 6 con-
tinuous months: and to agree that if laid off he would be considered for reemploy-
ment only for a period of 60 days from the date of his layoff. The applicant was
required, finally, to sign the application and even to have it witnessed. Before the
applications were distributed, the name of each employee was typed in the upper
left-hand corner of the application given to him
The distribution of the elaborate employment application forms on January 24
was wholly unprecedented. Laney himself testified that Laney & Duke had never
before "had that kind of application." As described by Laney, the application form
previously employed was "a small single-page" form which could be purchased at
14 See N.L R B. v Link-Belt Company, 311 U S 584, 602, F. W . Woolworth Company V.
N L R B , 121 F 2d 658, 660 (C A 2) , N L R B v Abbott Worsted Mills, Inc.,
127 F
2d 438, 440 (CA. 1) , Hickory Chair Manufacturing Company v. N L R B . 131 F 2d 849.
850 (C A. 4) , N.L R.B. v. Piezo Manufacturing Corporation , 290 F. 2d 455, 456 (C.A 2).
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a stationer's. Moreover, use was not always made of this simple employment appli-
cation form, for three of the employees who were witnesses; namely, Amos, Camp-
bell, and McMillan, testified that when they were hired they did not fill out any
application form. All that they filled out was a tax withholding form.
By whom the employment application forms were distributed in the storage ware-
house is not entirely clear. January 24, the day on which the applications were dis-
tributed, happened to be payday Bingham testified that he passed out the applica-
tions with the pay envelopes to which they were attached, and there is no doubt that
he gave the applications to some of the employees 15 But a number of the employees
testified that they received their employment application forms either from Stripling
or from Ronald Coleman, the foreman in the shipping department.'( What probably
happened was that Bingham gave Stripling and Ronald Coleman the employment
application forms for the employees who worked under them, and that Stripling and
Ronald Coleman in turn distributed them to their men.
It is the contention of the Respondents that the employment application forms
were distributed in order to replace employment records which had been lost as a
result of a great fire which had occurred in the storage warehouse on May 17, 1963,
and which had caused a loss of over $10 million. The storage warehouse, which
had been half destroyed, had had to be rebuilt, and the construction work had been
completed in early December 1963.
When the new employment application forms were distributed on January 24, how-
ever, no explanation of the distribution was made to the storage warehouse employees.
Bingham himself gave contradictory testimony on this point. When questioned about
it, he testified that he told the employees that if they had any difficulty in filling out
the applications they were to see him or Ronald Coleman, and also that they need
not answer questions such as those intended for new applicants, or sign the applica-
tions. But a moment later he also testified that Eugene Thompson, one of the
employees, was the first one to bring up the question of signing the application when
Ronald Coleman gave it to him, and that Coleman had called this query to his atten-
tion. When he was then asked, moreover, "You didn't tell it to the employees at
the time you were distributing the paychecks?" Bingham replied: "Sir, I don't
recall "
A number of witnesses testified positively, however, that when they were given
their application forms they were merely told to fill them out and turn them in by
the following Monday. These witnesses were Harrell, McMillan, and Woolbright.
Harrell did testify that he was told that the Company needed information which had
been destroyed by the fire but he also testified that he was not told this when the
application was given to him but later. The only one of the General Counsel's wit-
nesses whose testimony is not entirely clear on this point is Amos. When he was
first asked what he was told at the time when his application was given to him, he
gave an answer in such garbled form as to be unintelligible. He did testify then
that Ronald Coleman explained to him about the fire but this testimony was given
in answer to a question in which the element of timing was omitted. Amos clearly
testified, moreover, that he was not told until after the distribution of the applica-
tions that they did not have to be signed. There can be no doubt about this because
under date of February 7, 1964, counsel for the Respondents wrote a letter to Oakley
Mills, the union's representative, who had protested the distribution of the applica-
tions, and in this letter counsel for the Respondents declared: "There was never any
requirement that the applications be signed by the present employees and this point
was made clear to them after Herman Amos took it upon himself to collect the appli-
cations from the employees before they were filled out."
There is no doubt that Amos was the employee who took the lead in organizing
the resistance of all the employees to filling out the employment application forms.
It so happened that there was a union meeting the Saturday after they had been dis-
tributed, and 17 or 18 of the employees attended this meeting. Amos complained
to Mills at this meeting that the applications read as if the Company could discharge
the employees and hire others A discussion of the applications ensued at the end
of which those employees who were present at the meeting decided to turn over their
applications to Mills who proceeded to write to the Respondents the letter of com-
15Thus, James McMillan, one of the forklift operators, testified that he received his
employment form from Bingham
"Herman Amos and Nelson Woolbright testified that they received their employment
application forms from Ronald Coleman, while Eddie Harrell testified that he received
his from Stripling. Ronald Coleman is to he distinguished from Gerald (Jerry) Coleman,
the clerk in the receiving department.
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 261
plaint already mentioned. After the union meeting, Amos, accompanied by Kitchen,
went to the homes of the employees, and picked up the applications of those union
employees who had not attended the union meeting. These additional applications
were then also turned over to Mills.
Thus far employment application forms had been distributed only to the storage
warehouse employees. But, on the Tuesday following the union meeting on Satur-
day, January 25, employment application forms were also distributed to the employees
at the terminal warehouse. The forms were brought over to the terminal warehouse
at lunchtime by "Tad" Duke, the 22-year-old son of Duke, who told the employees
that the applications were to be filled out by Thursday. However, at the time that
the applications were brought over to the terminal warehouse, it so happened that
Amos was having lunch with the employees there. These employees had heard
what had occurred at the union meeting, and seven of them turned their applications
over to Amos upon his request.
The next day, which was Wednesday, January 29, Tad came to Amos in the ware-
house and told the latter that "granddaddy" wanted to speak him. This referred
to Laney. When Amos arrived in Laney's office, he found assembled there Laney
and the elder Duke, Bingham, and an employee of the terminal warehouse by the
name of James Campbell, who had, obviously, reported that he had turned his
application over to Amos.17 Confronting Amos with Campbell, Laney asked:
"Amos, do you know you have the company property without my consent?" When
Amos remained mute, Laney told him that he would give him until 1 p.m. that day
to get the applications and turn them in. During his lunch hour, Amos therefore
contacted Mills and told him about his predicament. Mills advised Amos to do as
he had been bidden. About 12:40 p.m. Amos turned over to Laney the seven appli-
cations which he had received from the terminal warehouse employees. Laney
demanded all of the applications but Amos denied that he had them and went back
to work. About 2 p.m., however, Tad came to summon Amos to "granddaddy's"
office again. Laney told Amos that he would give him until 4 p.m. to return the rest
of the applications, although Amos denied that he had them. This was true because
the applications were in the possession of Mills. Confronted with another deadline
and ultimatum, however, Amos again contacted Mills, obtained the remaining appli-
cations from the latter, and turned them over to Laney by 3.20 p.m. About a half
hour later, Bingham came over to Amos and asked the latter where the application
of Robert Du Bois was. Amos denied that he had any more applications, and Bing-
ham then went and asked Du Bois what he had done with his application, and Du Bois
told Bingham that he had turned it over to Mills. Subsequently, Mills mailed Du
Bois' application to Laney.18
In the morning of the following day. which was Thursday, January 30, Amos was
summoned by Tad for the third time to Laney's office where Laney and Duke were
awaiting him. Accusing Amos of having lied to him repeatedly about not having
the applications, and of having purloined the company property in taking possession
of the applications, Laney suspended Amos for a period of 2 weeks without pay.
In the afternoon of that same day, Mills, accompanied by another union repre-
sentative, came to see Laney and Duke to intercede with them on behalf of Amos.
Mills suggested that the status quo be maintained and that the suspension of Amos
be reduced from 2 weeks to 1. Laney told Mills that he had already been too lenient
with Amos but that if he changed his mind he would contact Mills. Laney never did
so, however.
I must hold that the distribution of the employment application forms to the
employees constituted a violation of Section 8(a)(1) of the Act in the circumstances
of the present case. Conceivably, a different and negative conclusion might be jus-
tified if the distribution of the employment application forms were the only unfair
labor practice with which the Respondents were charged. Considering the type of
warehouse laborers for whom they were intended, the forms might be ludicrous but
not unlawful. But the distribution of the forms does not stand in isolation, and this
act of the Respondents must be judged in the context of the other and numerous
unfair labor practices which the Respondents were actually committing. When so
judged, it must be concluded that the use of the forms was only another form of
harassment of the employees for foisting the Union on the Respondents. Threats
17 Laney admitted that he had received reports from several of the employees that they
had turned over their applications to Amos. So far as the terminal warehouse applica-
tions are concerned, Tad apparently saw the applications being collected by Amos and
so reported to his grandfather.
18 The application of Du Bois is in evidence as General Counsel's Exhibit No. 13. The
name of "Du Bois" Is typed in the upper left-hand corner of the application.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of loss of employment had already been made to individual employees. The use of
the employment application forms, which put each and every employee in the posi-
tion of an applicant for a job, and forced him to supply information that might well
result in the loss of his job, was ideally suited to the objective of undermining any
remaining feeling of job security which the employees might have. The evidence
shows, moreover, not only that the distribution of the employment application forms
had a tendency to inspire such fears but that it actually did inspire such fears, and
that these fears led the employees indeed to take concerted action through the Union.
It is immaterial that there may be no specific evidence of a subjective intent to use
the employment application for an antiunion purpose. The test for determining
whether an act of interference, restraint, or coercion in violation of Section 8(a)(1)
of the Act occurred does not turn on the employer's motive. The test is rather
whether the employer's conduct is reasonably calculated to interfere with the free
exercise of the rights of employees under the Act. This is only an application of
the common law rule that a person must be held to intend the forseeable conse-
quences of his acts.19 Even the existence of a legitimate business purpose-in this
case the securing of necessary personnel data-is not always a defense to an unfair
labor practice charge.20
But, actually, there is persuasive circumstantial evidence that Laney, Duke, and
Bingham intended the very consequences which resulted from the distribution of the
employment application forms. The very nature of the forms themselves suggest
this. If Laney and Duke had been interested merely in securing personnel data about
their employees, it is not very likely they would have used employment application
forms of the character which they actually employed, and, if they had used them as
substitutes for personnel data forms, they would have issued some explanation to
the employees at the time that the employment application forms were being dis-
tributed. Such explanations would have gone far toward quieting the fears likely to
be engendered among the employees by many of the questions in the forms. It is
perhaps even more significant that even after protests against the use of the forms
developed no general explanation was issued to all the employees, although addi-
tional forms were distributed to the terminal warehouse employees after questions
had been raised. Laney, Duke, and Bingham simply persisted in their course, and
waited more than 10 days to answer Mills' letter of January 27 in which he suggested
that the signing of employment application forms was a matter for collective bar-
gaining. No less significant would seem to be the fact that the employment applica-
tion form distributed to each employee was not entirely blank but bore the name of
the employee to whom it was given in the upper left-hand corner. This would seem
to suggest that Laney and Duke, who made the decision to distribute the forms, antici-
pated at least that there might be trouble in getting them filled out, and wished to be
able, so to speak, to separate the sheep from the goats.
Finally, it must be counted heavily against the Respondents that the explanation
which Laney offered for the distribution of the employment application forms does
not really explain very much. The filling out of new employment application forms
could hardly have been regarded as either very important or very urgent if Laney
and Duke got along perfectly well without them for more than 6 months after the
fire and for more than a month after the storage warehouse had been rebuilt and was
in full operation. To be sure, they had other things to think about during this period,
and no doubt they had their hands full with insurance company adjusters and con-
tractors. Their inaction is thus not conclusive. The real difficulty with Laney's
explanation is that the application forms, which the employees were asked to fill out
within a week after the Regional Director had overruled the objections of the
Respondents to the conduct of the election, could not be said to be replacements for
the application forms that had been destroyed by the fire, since many of the employ-
ees had never before filled out employment applications of any kind, and those that
had filled out such forms had filled out forms which, in comparison with the forms
distributed on January 17, must be regarded as rudimentary. Thus the new forms
could not be regarded as in any true sense replacements of the old, and what was
new in the forms was the cause of all the trouble.
So far as the 2-week suspension of Amos is concerned, it is clear that his action
in taking the lead in arousing the employees against signing the employment appli-
cation forms constituted a protected concerted activity, and that the Respondents
violated Section 8(a)(1) of the Act by suspending him. Amos was penalized for
"See for instance , N L R.B v. Illinois Tool Works , 153 F 2d 811 , 814 (CA. 7) ;
American Freightways Co, Inc., 124 NLRB 146, 147 ; Erie Resistor Corporation, 132
NLRB 621, 629, affd . 373 U.S. 221.
20 N.L.R B. v. Erie Resistor Corp , et al ., supra, at 227.
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 263
interfering with the Respondents' objective in distributing the employment applica-
tions rather than for the two reasons given by Laney, which must be regarded as
mere pretexts. The credible evidence does not support Laney's contention that
Amos lied to him about the applications. Actually, Amos remained silent on both
occasions when he was questioned by Laney about them. Indeed, that must have
been the reason why he was given ultimatums to produce them. As for the second
reason given by Laney for disciplining Amos, which was that Amos "had removed
property from the warehouse that did not belong to him," it was not literally true.
The bulk of the employment applications were those distributed to the storage ware-
house employees, and these were either turned over to Mills at the union meeting or
subsequently collected by Amos from the other employees at their homes. Thus
they were not removed by Amos from the warehouse. The remaining applications
were those given to the terminal warehouse employees but these too were not removed
animus furandi from the warehouse, either in the dark of night or the bright light
of day. They were turned over to Amos when he asked the terminal warehouse
employees for them. But, even regarding Amos' alleged offense as taking possession
of the employment applications, it would be a nice question for law students to have
to determine whether an employment application given to an applicant continues to
be the property of the employer. Amos, who was only a warehouse laborer, was
not bound to answer this question correctly at his peril. If the correct answer is that
the applications continued to be the property of Laney & Duke, it would at least
seem obvious that the value of such property, consisting of a few dozen forms, would
be so trivial that it could hardly have been the real reason for suspending Amos.
It would also seem that the suspension of Amos violated Section 8(a)(3) of the
Act if the Respondents were aware that Amos was engaged in a union activity in
connection with the handling of the employment applications. Although he admitted
that he received reports from several of the employees that they had turned their
applications over to Amos, Laney nevertheless denied that he was also told that the
forms had been turned over by Amos to the Union, or that there had been a union
meeting at which the forms were discussed. In the circumstances of the present case
Laney's denials must be regarded as inherently incredible. Having admitted that he
knew that the employees were turning over their applications to Amos-a form of
activity that in itself suggested concerted action-Laney would have had to be blind
to all realities to assume that the Union was not involved in this activity. The name
"Amos" and the term "union" were synonymous. Moreover, Bingham only added
to the sum total of the contradictions in the testimony of Laney and himself when
he testified in answer to a question on this subject as follows:
Q. You learned that the applications were in the possession of the union or
some of them were?
A. Yes, after Mr Laney had gotten down into this Mr. Laney found out
about these. He found out where the applications were, and I got my informa-
tion from him. [Emphasis supplied.]
Actually, this testimony can be regarded as only partially true. Bingham did not
need to wait for Laney to tell him what he had already ascertained for himself. He
was going around asking the employees who had not turned in their applications
what they had done with them, and it strains credulity to have to believe that every
single one of them declared-untruthfully-that they had turned their applications
over to Amos, and never so much as mentioned the Union. As a matter of fact,
one of the employees, James McMillan, who was questioned by Bingham on Wednes-
day, January 29, the day before Amos was suspended, told Bingham that he had
turned his application in to the Union on Saturday, the day of the union meeting.
As McMillan testified: "I told him, Mr. Bingham, you stated you give me the form
to bring in Monday. I couldn't get no sense out of it. You told me to bring it
Monday and I turned it in to the union on Saturday." [Emphasis supplied.] I find
that by suspending Amos on January 30, 1964, for a period of 2 weeks Laney vio-
lated not only Section 8(a)(1) but also Section 8(a)(3) of the Act. It is perhaps
needless to add that the intercession of Mills in Amos' behalf did not have the effect,
as the Respondents seem to contend, of validating his unlawful suspension.
3. The second suspension of Amos
Apparently, Laney kept his eyes on Amos in his peregrinations around the ware-
house after the latter had returned to work following his suspension. It could not
have been more than a few days after this that Laney observed Amos driving his fork-
lift with a loaded pallet of rock candy, and it seemed to him that the load was not
tight enough. As Laney turned to go toward the shipping department several cases of
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
candy fell off. Laney rebuked Amos for not tightening his load but Amos contended
he was not responsible for its condition. According to Laney, Amos declared that
that was the way he had received the load, and seemed "arrogant as he could be." On
this occasion, however, Laney did nothing.
Amos was not so fortunate about 2 weeks later. On March 2, which was a Monday,
he was moving cases of Camel cigarettes with his forklift when some of them fell off
the pallet. Laney, who also observed this incident, again took Amos to task. Amos
attempted to explain that the cases had been improperly stacked on the pallet but
Laney brushed his excuses aside and told him to take the balance of the week off.
As Amos walked down the aisle, Bingham came up to Laney, and Amos observed
the two of them engaged in conversation.
At the time of the incident involving the load of Camel cigarettes, two employees
who had both been employed after the union election were in the vicinity. The first
of these employees was Charlie McDowell, who worked as an order picker. About
20 to 30 minutes after the incident had occurred, Bingham told McDowell to come
to his office, and the latter did so 10 to 15 minutes later. Bingham had a slip of paper
in his hand on which he had written a statement to the effect that McDowell had seen
Amos operating his towmotor in a dangerous and reckless manner . Bingham asked
McDowell to sign the statement but the latter refused to do so on the ground that he
had not witnessed the incident. McDowell's refusal to sign the statement made
Bingham curse and accuse McDowell of lying. The second employee, who had a
similar experience with Bingham, was an extra by the name of Mathew Allen who was
working as a helper. He, too, was asked by Bingham to sign a prepared statement
about the incident in which Amos had been involved and he, too, refused to do so on
the ground that he had not witnessed it, and he, too, was denounced by Bingham as a
liar. When Allen came to work the following day, he was told that he was no longer
needed, and he has not worked for Laney & Duke since that day.
I must conclude that the second suspension of Amos, which was only a further
manifestation of the hostility of the Respondents toward him, occasioned by his union
activity, also violated Section 8(a)(3) and (1) of the Act It is clear from the
testimony of the employees who were witnesses at the hearing that accidents in the
handling of freight were commonplace. Indeed, quite apart from their testimony, it
would be obvious that such accidents would occur not infrequently in warehousing
operations of the magnitude of those in which the Respondents were engaged. As a
matter of fact, the Respondents had a separate section or room set aside for the
storing of damaged freight. When the damage was serious, and the employee involved
was at fault, he might be made to pay for the damage by withholdings from his wages
but he was not discharged or laid off except under circumstances of great aggravation.
If there could be said to be any doubt concerning the real motive of the Respondents
in suspending Amos for the second time within a month, it is surely removed by the
evidence showing Bingham's efforts to secure statements from McDowell and Allen.
While it would not be surprising that Bingham should seek to secure statements from
witnesses before taking any action against such a prominent union adherent as Amos,
his true purpose is betrayed by the fact that he had even prepared the statements in
advance of interviewing the prospective deponents, and also by the fact that he
exhibited great anger when he met resistance. In the case of Allen, he took, moreover,
punitive action. This would seem to justify the surmise that if he had succeeded,
Amos might have been discharged altogether. Laney had told Mills that he had been
too lenient with Amos. The purpose of the second suspension was to make up for
this leniency. It is, finally, worth noting that when Bingham was on the witness stand
he was not called upon to repudiate the testimony of McDowell and Allen. This
testimony remains, thus, wholly uncontradicted.
D. Alleged t'tifair labor practices after the election
1. The discharge of Harley on January 8
While Laney & Duke were engaged in committing some of the unfair labor
practices which have thus far been described, they reemployed a former employee by
the name of Walter James Harley as a forklift operator. Harley had first been
employed by the Respondents on January 8, 1958, and worked until November 17,
1961, when he was drafted into the Army. Upon his discharge from military service
on November 19, 1963, Harley applied for reinstatement by the Respondents and
was reemployed by them on December 3, 1963.
Harley voted in the election of December 20, 1963, but he was not on the eligibility
list of November 4, 1963, and his vote was challenged by the Respondents. Conse-
quently, his vote was not counted. After the election, Harley signed a Steelworkers
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 265
authorization card but he did not attend any of the Union's meetings. He was also not
among the employees who were interrogated either by Laney or Duke or any other
supervisory employee prior to the election.
On January 8, 1964, Harley was operating his forklift at the loading platform of the
storage warehouse. At the edge of the roof of this loading platform there runs a pipe,
and at intervals along this pipe there are sprinkler heads from which water can come
out in case of a fire. When the sprinkler heads are struck , a fire alarm is automatically
sounded. On the day in question, Harley, in working on a trailer, had his boom
raised too high and hit the sprinkler system. The blow caused damage to the pipe,
amounting to approximately $100, and the water released as a result of the blow also
damaged 41 or 42 cases of bird seed, the recoopering of which cost 50 cents a case.
The fire alarm also sounded and this brought out the fire department.
At this time, Laney was returning from lunch in his car and, hearing the fire
engines, he followed them to the Laney & Duke storage warehouse. When he
arrived at the loading platform, he learned that it was Harley who had been respon-
sible for bringing the fire engines out. Laney talked immediately to Duke about the
Harley incident and they decided to discharge Harley, which they did forthwith.
The chief reliance of the General Counsel in attempting to establish that the dis-
charge of Harley was discriminatory is, apparently, that some years prior to his
discharge another employee by the name of Mincey Minor had hit one of the sprink-
lers and caused the fire engines to come out but had not been discharged. Minor
himself subsequently quit his job and did not testify at the hearing. As a result, the
circumstances of the accident in which he was involved are somewhat obscure. In
particular, it is not established whether the accident was Minor's fault. Harley him-
self conceded, however, that he was at fault. At the time of the accident in which
Minor was involved, moreover, the Respondents had not suffered any great fire loss.
It is readily understandable, on the other hand, that Laney and Duke, with the trau-
matic experience of a $10 million fire loss still vivid in their memories, would react
far more sternly in the case of Harley than in the case of Minor. Furthermore, since
Harley was not one of the early union adherents, did not attend any union meetings,
and was not among those employees who were interrogated by Duke and Laney,
there is no adequate basis for inferring that they had knowledge concerning Harley's
union activities. The failure of Harley to attend any union meetings is particularly
crucial, since the source of Duke's and Laney's knowledge was principally the reports
which they were undoubtedly receiving from various employees concerning the
attendance and occurrences at the union meetings. I must conclude that the evidence
is not substantial enough to establish that the discharge of Harley was discriminatory.
2. The discharge of James McMillan
James McMillan was first employed by the Respondents in March 1962 as an extra
and put to work at the Bay Street warehouse. After working for some time as an
extra, he was put on as a regular at the Bay Street warehouse where he was employed
in unloading Hudson Pulp Paper. At the time of the fire in May 1963, he was doing
shipping and unloading work at the storage warehouse on Jessie Street. After the fire
he was put on as an extra again at the Bay Street warehouse but after a few weeks
was made a regular, being employed, apparently, in the unloading of candy. At no
time during this period was he employed as a forklift operator but several weeks after
the institution of the night shift he was put under Jerry Coleman as a forklift operator.
There were, in all, four forklift operators on the night shift. McMillan was laid off on
March 24, 1964, and has not been recalled to work since then.
McMillan signed his union authorization card on August 13, 1963, and he attended
several union meetings that were held. In his case there is direct proof that Bingham,
who laid him off, knew that he was a union supporter, at least since January 29, 1964,
when he told Bingham that he had turned in his employment application form to the
Union. Nevertheless, there would not seem to be substantial evidence that McMillan's
layoff was discriminatory.
Bingham was the one who made the decision to terminate McMillan, and he testified
as follows with respect to the reasons for his decision:
He was actually surplus. We didn't need him. We tried at various places to
give him a job to retain him, but I didn't have a place for him to fit in. He was
supposed to have been a forklift driver. However, he was not up to standard.
He was very extremely slow in operating his forklift. I put him on the night
crew. Mr. Stripling complained about him being so slow: didn't satisfy him. At
that time he made the fourth forklift driver and I felt we could get by with
three. Therefore I had to let him go.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, according to Bingham, he let McMillan go because he was inadequate as a
forklift operator, and he had the least seniority of the four forklift ope.titors. There
is no evidence that McMillan was in fact a good forklift operator. In this capacity his
tenure was obviously very brief. While Stripling did not testify specifically with
respect to the capabilities of McMillan, he did testify that there was a lot of trouble
with the night crew as a whole. As for McMillan's seniority, it is not clearly estab-
lished that he was not the junior forklift operator. McMillan's own testimony on
this subject is hopelessly confused, and there is no other testimony. He clearly iden-
tified Cleveland Belmond as one of the four forklift operators. He also named a
Willie James as one of the other forklift operators. But there was no Willie James put
on the night crew when it was instituted; there was a Willie Jackson, but it is not pos-
sible to conclude with certainty that McMillan really had Willie Jackson in mind. The
fourth forklift operator mentioned by McMillan was someone to whom he referred
both as "Johnny" and "Woody," but who cannot be identified from the record. In any
event, there is nothing to show that seniority governed strictly in layoffs. The deter-
mining factors were probably a combination of seniority and ability.2' It is also not
shown that anyone regularly took McMillan's place as a forklift operator after he
had been laid off. McMillan testified, to be sure, that when he went back to the plant
on the Wednesday following the week of his termination, he saw a new employee.
However, McMillan could not identify this employee except by his nickname "Pop-
corn," and McMillan himself testified that Popcorn was not working as a forklift
operator.
I agree with counsel for the Respondents that if Bingham were really bent on dis-
criminating against McMillan, he would not have waited from January 29 to
March 24 before terminating him, and also that he would never have even put him on
the night shift when a vacancy occurred after he had learned that be was a union
supporter.
E. Violation of Section 8(a)(5) of the Act
It is alleged in the complaint that the Respondents at all times since on or about
December 20, 1963, have refused to recognize the Union or to meet or confer with it,
and also that since the same date the Respondents have unilaterally changed the wages,
hours, and working conditions of their employees by instituting the night shift, and by
requiring their employees to fill out new employment application forms. These allega-
tions of the complaint are fully supported by the evidence
Under date of March 31, 1964, Mills addressed a letter to Laney & Duke request-
ing a meeting for the purpose of negotiating a labor agreement for the employees in
the appropriate bargaining unit. Counsel for the Respondents sent a reply to this
letter under date of April 15, 1964, confirming that the Respondents had decided not
to recognize the Board's decision and certification. As I am bound by the Board's
decision and certification, I granted at the hearing the motion for summary judgment
by counsel for the General Counsel, and this ruling is now reaffirmed.
It would also seem to be apparent that by instituting the night shift on January 16,
1964, and by requiring the employees to fill out new employment applications forms
on January 24 and 28, 1964, the Respondents also acted unilaterally and without any
advance notice to the Union. The institution of the night shift involved a change in
the terms and conditions of employment in the receiving department of the storage
warehouse. Since by filling out and signing the employment application forms, the
employees at both the storage and terminal warehouses were required to agree to cer-
tain conditions, which necessarily affected the terms of their employment, the require-
ment also represented a unilateral change in such terms of employment.
It is true that in the letter of February 7, 1964, to which reference has already been
made, counsel for the Respondents also declared that- "None of the employment con-
ditions would apply to the present employees even if the company insisted that the
application be signed." This declaration could not cure, however, the violation
involved in the unilateral action. In the first place, quite apart from the specific condi-
tions which were newly imposed, the applications themselves represented a change in
the hiring practices of the Respondents about which the Union was entitled to be con-
sulted. In the second place, this hiring practice, once established, would apply to
future applicants for employment, and the Union also had an interest in this matter.
It would also seem to be immaterial that when the Respondents acted unilaterally
the Board had not yet certified the Union, and the Union itself had not yet requested
"In the night-shift notice both seniority and ability were mentioned, for instance, as
determining factors.
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 267
the Respondents to bargain . After the election the Respondents knew that the Union
had won the election and represented a majority of their employees . They could act
unilaterally thereafter only at their peril.22
IV. THE REMEDY
In view of the scope of the unfair labor practices of the Respondents , I shall recom-
mend a broad form of cease -and-desist order designed to effectuate all of the guaran-
tees of Section 7 of the Act. I shall also recommend that the Respondents take appro-
priate affirmative action to effectuate the policies of the Act.
As affirmative relief, I shall recommend that the Respondents offer to Walter Lee
Johnson , Quentin Nealy , Allen J . Rose, and Willie Pollard immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice to
their seniority or other rights or privileges , dismissing , if necessary , any employees who
may have been hired to replace them. I shall further recommend that each of them
be made whole for any loss of pay he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money equal to the amount which he
normally would have earned as wages from the date of his discharge to the date of the
Respondents ' offer of reinstatement , less his net earnings during said period. The
amount of backpay is to be computed on a quarterly basis in accordance with the
formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest is to be
computed on the amount so determined in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716. I shall also recommend that the Respondents shall make whole
Herman Amos for the loss of pay that he sustained during the two periods of his
suspension . When this amount has been determined , interest shall also be added to
such amount at the rate of 6 percent per annum.
Finally, I shall recommend that the Respondents , upon request, bargain collectively
with the Union as the exclusive representative of the employees in the appropriate bar-
gaining unit and embody any understanding which may be reached in a suitable agree-
ment. In order to restore, as far as possible , the status quo before such bargaining
commenced , I shall also recommend that the Respondents refrain from giving effect to
any of the individual agreements with its employees which are contained in the fourth
page of the employment application forms that were distributed to them on January 24
and 28, 1964 , and that were subsequently signed by them.
As the employees of the Respondents are on a low level of literacy and education,
the notice to be recommended for posting will not follow the language of the Recom-
mended Order but will be written in a form more suitable to their comprehension. It
will also be recommended that , in addition to posting the notice , the Respondent shall
read the notice to such of their employees as may request that it be read to them.
CONCLUSIONS OF LAW
1. The Respondents , Laney & Duke Storage Warehouse Co., Inc., and Laney &
Duke Terminal Warehouse Co., Inc., are employers engaged in commerce , or in an
industry affecting commerce , within the meaning of Section 2 ( 6) and (7) of the Act,
and are jointly and severally liable for the redress of the unfair labor practices com-
mitted by them.
2. The Union , United Steelworkers of America , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By coercively interrogating their employees concerning their union membership,
activities , and desires ; by seeking to encourage their employees to do missionary work
in their behalf among their fellow employees and to report happenings at union
meetings; by threatening to discharge employees or to deny them loans or to engage
in other forms of reprisal ; by promising to restore automatic wage increases, to dis-
tribute bonus checks, and to give their employees a big Christmas , or by making other
promises of benefits if they would abandon the union ; by representing to their employ-
ees that their efforts at self-organization would avail them nothing and only result
again in the loss of wage increases which they otherwise would have received if it had
not been necessary to pay lawyers ' fees to fight unions; by distributing , as part of their
antiunion campaign , new employment application forms to their present employees
without any explanation of the purpose of the forms , and by requiring such employees
to sign such forms the Respondents interfered with, restrained , and coerced their
as See Tennessee Valley Broadcasting Company, 83 NLRB 895 , 897-898; Sixteenth An-
nual Report of the National Labor Relations Board p 199 , and cases there cited ; Jordan
Bus Company and Denco Bus Lines , Inc., 107 NLRB 717, 729; Cranston Print Works Com-
pany, 115 NLRB 537, 545-547 ; Fleming Manufacturing Company, Inc., 119 NLRB 452,
464-465; and Zelrich Company, 144 NLRB 1381.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the exercise of the rights guaranteed in Section 7 of the Act , and thereby
committed unfair labor practices affecting commerce within the meaning of Section
8(a)(1) of the Act.
4. By discharging Walter Lee Johnson , Quentin Nealy, Allen J. Rose, and Willie
Pollard because they had joined and assisted the Union , or because the Respondents
believed that they had engaged in such activities , the Respondents discriminated with
respect to the tenure of employment of these employees , and thereby committed unfair
labor practices affecting commerce within the meaning of Section 8(a)(3) and (1)
of the Act.
5. By suspending Herman Amos on January 30. 1964, for a period of 2 weeks, and
by suspending him again on March 2 , 1964, for a period of a week because he had
engaged in concerted activities for the mutual aid or protection of the employees and
because he had joined and assisted the Union , the Respondents discriminated with
respect to the tenure of his employment , and thereby committed further unfair labor
practices affecting commerce within the meaning of Section 8 ( a)(1) and ( 3) of the
Act.
6. All the employees at the Jacksonville , Florida. warehouses of the Respondents,
including warehousemen , shipping and receiving clerks , and truckdrivers , but exclud-
ing office clerical employees , salesmen, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective baigaining within the
meaning of Section 9(b) of the Act.
7. At all relevant times since December 20, 1963 , the Union has been the exclusive
representative of the employees in the aforesaid baigaining unit within the meaning
of Section 9(a) of the Act.
8. By unilaterally instituting a night shift in the receiving department of their stor-
age warehouse on January 17, 1964; by requiring their employees at their storage and
terminal warehouses to fill out and sign employment application forms on January 24
and 28, 1964 , without previous consultation with the Union ; and by refusing at all
times since April 15, 1964, to bargain collectively with the Union , the Respondents
have committed unfair labor practices affecting commeice within the meaning of
Section 8 ( a) (5) and ( 1) of the Act.
9. By terminating the employment of Walter James Harley on Januaiy 8, 1964, and
of James McMillan on March 24 , 1964 , the Respondents have not discriminated with
respect to the tenure of their employment , and therefore have not committed unfair
labor practices affecting commerce within the meaning of Section 8(a)(3) and (1)
of the Act.
RECOMMENDED ORDER
Upon the entire record in this proceeding , and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, it is hereby recommended that the
Respondents , Laney & Duke Storage Warehouse Co., Inc. , and Laney & Duke Termi-
nal Warehouse Co., Inc., their officers, agents , successors , and assigns, shall
1. Cease and desist from:
(a) Coercively interrogating their employees concerning their union membership,
activities , and desires ; seeking to encourage their employees to do missionary work
in their behalf among their fellow employees and to report happenings at union
meetings ; discharging employees , or denying them loans, or engaging in other forms
of reprisal ; promising to restore automatic wage increases , or distributing bonus
checks, or giving their employees a big Christmas if they would abandon the Union;
representing to their employees that their efforts at self-organization would avail them
nothing and only result in the loss of wage increases which they otherwise would have
received if it had not been necessary to fight unions ; distributing , as part of their
antiunion campaign , new employment application forms to their present employees
without any explanation of the purpose of the forms , and requiring their employees
to sign such forms.
(b) Discouraging membership in United Steelworkers of America , AFL-CIO. or
any other labor organization of their employees , by discharging or suspending employ-
ees or in any other manner discriminating against employees with respect to their hire
or tenure of employment or any term or condition of their employment.
(c) Refusing to bargain collectively with the Union with respect to rates of pay,
wages, hours of employment, or other terms or conditions of employment.
(d) In any other manner interfering with , restraining , or coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act
2. Take the following affirmative action in order to effectuate the policies of the
Act:
(a) Offer to Walter Lee Johnson , Quentin Nealy , Allen J . Rose, and Willie
Pollard immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and privileges, and make
LANEY & DUKE STORAGE WAREHOUSE CO., INC., ETC. 269
each of them whole for any loss of pay he may have suffered by reason of the
Respondents' discrimination against him in the manner and to the extent set forth
in the section of this Decision entitled "The Remedy."
(b) Make Herman Amos whole for the loss of pay sustained by him as a result
of his two suspensions in the manner and to the extent set forth in the section of
this Decision entitled "The Remedy."
(c) Upon request, bargain collectively with the Union as the exclusive representa-
tive of the employees in the bargaining unit hereinbefore described as appropriate
and embody in a signed agreement any understanding which may be reached. Pend-
ing such collective bargaining, the Respondents shall refrain from giving effect to the
individual agreement contained in the new employment application forms signed by
their employees in the manner and to the extent specified in the section of this Deci-
sion entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze and
compute the amounts of backpay due under the terms of this Recommended Order.
(e) Notify any of the discriminatees 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
of 1948, as amended, after their discharge from the Armed Forces.
(f) Post at their warehouses and any other place of business in Jacksonville,
Florida, copies of the attached notice marked "Appendix." 23 Copies of said notice,
to be furnished by the Regional Director for Region 12, shall, after being duly signed
by the president of the Respondents, be posted by the Respondents immediately upon
receipt thereof, and be maintained by them 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 Respondents to insure
that said notices are not altered, defaced, or covered by any other material. The
said notice shall also be read to such employees as may request that it be read to them.
(g) Notify the Regional Director for Region 12, in writing, within 20 days from
the receipt of this Decision and Recommended Order, what steps they have taken to
comply therewith.24
If this Recommended Order be adopted by the Board, the words "a Decision and
Order" In the notice shall be substituted for the words "the Recommended Order of a
Trial Examiner." In the further event that the Board's Order be 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 "
14 In the event that this Recommended Order be 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 Respondents have taken to comply therewith."
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 question our employees concerning their union membership,
activities, or desires in order to force them to give up the Union.
WE WILL NOT seek to encourage any of our employees to do missionary work
among their fellow employees in an effort to talk them out of supporting the
Union.
WE WILL NOT ask our employees to report what happens at union meetings.
WE WILL NOT threaten to fire employees or deny them loans or try to get back
at them in other ways because they are supporting the Union.
WE WILL NOT promise to restore the raises which our employees used to get
every year before they joined the Union, or promise to give them bonus checks if
they dropped the Union, or promise to give them a big Christmas if they have
nothing to do with the Union, or make any other promises to our employees
which we do not intend to keep.
WE WILL NOT tell our employees that unions will never get them anything, or
tell them that the reason they have not gotten any raises is that we had to spend
money on lawyers to fight the Union.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT make any of our present employees fill out and sign employ-
ment application forms, and we will not hold any of our employees who signed
such forms to what they agreed to do by signing them.
WE WILL NOT discourage any of our employees from joining the United Steel-
workers of America, AFL-CIO, or any other union, by firing or suspending any
of our employees.
WE WILL NOT interfere in any other manner with the rights of our employees
under the law, or force them to give up any of their rights under the law.
WE WILL offer their jobs back to Walter Lee Johnson, Quentin Nealy, Allen J.
Rose, and Willie Pollard, and give them backpay for the time that they have not
been working since the night shift was established on January 17, 1964.
WE WILL give Herman Amos the pay which he would have received if he had
not been suspended from work for 2 weeks on January 30 and for 1 week on
March 2.
WE WILL get together with the Union, whenever the Union asks us to, to try
to work out a written union contract.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of any labor union.
If any employee is unable to read this notice but learns that it has been posted, he.
may ask the management to have it read to him.
LANEY & DUKE STORAGE WAREHOUSE CO., INC., and
LANEY & DUKE TERMINAL WAREHOUSE CO., INC.,
Employers.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the.
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training.
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, in the
Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711,
if they have any question concerning this notice or compliance with its provisions.
Tursair Fueling , Inc. and Marvin Louis Howe, Jr. Case No.
12-CA-2956. February 06,1965
DECISION AND ORDER
On December 11, 1964, Trial Examiner Herbert Silberman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers
in connection with this case to a three-member panel [Members.
Fanning, Brown, and Jenkins].
`Respondent's request for oral argument Is hereby denied, as the record, exceptions,
and briefs adequately present the issues and the positions of the parties.
151 NLRB No. 35.