Morris & Associates, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1160 (N.L.R.B. 1962)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its job project at Hopewell, Virginia, including all places at the project
where notices to employees are customarily posted, copies of the notice attached
hereto marked "Appendix." 12 Copies of the said notice, to be furnished by the
Regional Director for the Fifth Region, shall, after being signed by Respondent's
representatives, be posted by the Respondent immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Fifth Region in writing within 20 days
from the date of the receipt of this Intermediate Report and Recommended Order
what steps have been taken to comply therewith.13
11 In the event that these Recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. 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"
13 In the event that these Recommendations 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 Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge or refuse to reinstate any of our employees because
they engage in concerted activities for their mutual aid or protection.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, loin, or
assist labor organizations, to bargain collectively through representatives of
their own choosing and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL offer Bennie Richardson and George Henshaw immediate and full
reinstatement to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed and make
them whole for any loss of pay suffered as a result of their discharge on Sep-
tember 22, 1961.
DANIELS CONSTRUCTION COMPANY OF VIRGINIA,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notico must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 N. Calvert Street, Baltimore, Maryland, Telephone Number Plaza 2-8460,
if they have any question concerning this notice or compliance with its provisions.
Morris & Associates , Inc. and International Union of Electrical,
Radio and Machine Workers, AFL-CIO. Case No. 11-CA-1839.
September 28, 1962
DECISION AND ORDER
On March 22, 1962, TriA Examiner George J. Bott issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
138 NLRB No. 126.
MORRIS & ASSOCIATES, INC. 1161
Respondent 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 Intermedi-
ate Report. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following exceptions, additions,
and modifications.
1. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8(a) (1) of the Act by its interrogation of
employees Raymond Strickland and Percy Poole as to employee union
activity ; by its threats of reprisal to employees engaged in union
activity which it made to employees Raymond Strickland, Jarvis
Johnson, Dixie Weatherspoon, Percy Poole, and Bobby Ray Raper,
and by its promise of a wage increase to Percy Poole if he would help
keep the Union out of the plant. We further find, however, contrary
to the Trial Examiner, that the Respondent also violated Section
8(a) (1) of the Act by its posting a notice at its plant informing em-
ployees that it was the Respondent's "definite view that if the Union
were to come in at the plant it would work to the serious harm of the
employees," especially when such notice is viewed in the context of the
other Section 8(a) (1) violations; and we agree with the General
Counsel's contention that there is no essential difference between the
notice herein posted by the Respondent and that considered by the
Board in White Oak Acres, Inc.'
2. We agree with the Trial Examiner that the Respondent's layoff
of employee Raymond Strickland was discriminatorily motivated
and that in effecting such layoff the Respondent violated Section
8 (a) (3) and (1) of the Act. The Respondent's efforts by threat and
appeal to Raymond Strickland, a crew chief,2 to abandon the Union
and to aid the Respondent in combating the Union's organizational
efforts, establishes the Respondent's abiding hostility toward the
1134 NLRB 1145
2 Crew chiefs were not supervisors
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and its deep concern lest the Union prove successful in organ-
izing its employees.
We, however, cannot agree with the Trial Examiner's further find-
ing that the discharge or layoffs of eight additional employees was
not equally discriminatorily motivated and that the Respondent's as-
serted economic necessity therefor was not simply a pretext to disguise
its true unlawful motivation.'
The record shows that in the early morning hours of July 14, 1961,
at, apparently, a first meeting with a union representative on the
Respondent's parking lot, 20 out of 25 night-shift employees present
signed cards for the Union. The Respondent does not deny that it
acquired immediate knowledge of the employees' actions. In fact,
the Respondent clearly manifested such knowledge when later that
day Foreman Ray in effect accused Raymond Strickland of being
the one who had gotten the employees together to sign union cards,
and volunteered that he knew that all but one employee had signed
cards.
There is no question that the Respondent by its threats and promises
made known its antipathy to the Union and its strong aversion to the
action of the employees in joining a union. Thus, Foreman Ray, with
knowledge that Strickland had attended a union meeting in Septem-
ber, instructed Foreman Boling, in the presence of Strickland, to "fire
this man if he steps out of line; he is a union man. He was at the
union meeting Saturday night." When Strickland went to Produc-
tion Engineer Owens to inform him of having attended the meeting
and remarked that "it seems everybody else in the shop does know
about it," Owens replied that the Company was counting on Strick-
land's aid in keeping the Union out. On another occasion Foreman
Ray told Strickland that the Company had him "pegged again" for
starting the Union. Ray told Strickland of President Morris' concern
about the matter. He suggested that Strickland talk with Morris.
Strickland did so. In the course of the conversation, in which Morris
questioned Strickland about the Union, Morris said, in effect, as the
Trial Examiner found, that he would fire any employee who went
on strike.
The Respondent's threats of reprisal and unlawful interrogation
were not confined to Strickland. Employee Poole who had also signed
a card at the July 14 meeting was questioned by Owens and Ray
3 We find, however , as did the Trial Examiner , and for the reasons set forth in the
Intermediate Report , that the General Counsel failed to prove by a preponderance of the
evidence that the Respondent was equally discriminatorily motivated in the discharge
of a 10th employee , Richard Dupree Dupree , who was discharged for unsatisfactory
work, had been employed as, and was still, a probationary employee at the time of his
discharge Although Dupree signed a union card , such signing took place at his home,
and while there is evidence that the Respondent had knowledge of union membership
with respect to the others , there is no evidence to show that the Respondent knew of
Dupree's union membership . Dupree himself did not testify in this proceeding
MORRIS & ASSOCIATES, INC. 1163
about the meeting. Information was sought to be solicited from him
as to who had signed cards. Ray at this time also indicated that he
knew who had signed, and added that President Morris "wasn't
going to have any union in." On the same day Ray gathered the
entire night shift together and stated that he was not "going to have
a union." Poole, on another occasion, was promised a wage increase
by Night Foreman Giles if he would help to keep out the Union. He
was told that Morris had informed Giles that he, Morris, did not in-
tend to have a union in the plant, and if necessary, would move the
plant to Georgia. Giles similarly conveyed the threat of plant clos-
ing to employee Raper. He also stated to Raper that there were
"legal ways" of getting rid of union members.
Employee Jarvis Johnson, who also had signed a card on July
14, and distributed cards to employees, was told by Foreman Ray a
week later that "if you keep messing with the Union, I'm going to
put you on a union job," a statement which the Trial Examiner found
to be an implied threat. On another occasion Jarvis Johnson was
told, by General Superintendent Chatham, that President Morris
would deprive the employees of certain benefits and that Morris had
stated that he would "shut the doors" before the Union would be per-
mitted to organize the Company. Finally, the Trial Examiner found
that employee Weatherspoon, who had arranged the July 14 meeting,
was interrogated and threatened in a similar manner.
The record is clear that the employees selected for discharge or
layoff were, with the exception of employee Snead, among the em-
ployees who on July 14 met with a union representative and signed
cards for • the Union and whose union sentiments were admittedly
known to the Respondent. It is the Respondent's contention that the
layoffs were a matter of economic necessity; that the employees laid
off, who constituted all of the Respondent's chiller employees, were
selected for the simple reason that the market for chillers had be-
come saturated at the time; that therefore the Respondent had no
orders for chillers and, hence, no work for the chiller employees. The
record shows, however, that after the layoff of the entire chiller
group, the Respondent engaged in experimental work on chillers with
employees who apparently had not as much, if any, experience on
chiller work as did the chiller employees, but whom, the Respondent
nevertheless considered qualified enough to do experimental work.
Moreover, testimony in the record would support a finding that skills
and classifications were not sharply differentiated among the Re-
spondent's employees and that the employees who worked mainly
on chillers were also qualified to, and did, perform a variety of tasks
performed by other employees.4 Indeed, the record shows, as the
4 By the same token, Respondent cannot justify its discharge of Faircloth on the ground
he could not read blueprints and was a show worker In any event , Faircloth testified
without contradiction that he had worked for Respondent for 3 years as a welder and
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner found, that at the time employee Jarvis Johnson was
interrogated by Chatham, Respondent's general superintendent,
Johnson, in the company of Chatham, was on his way to an out-of-
town assignment.
Thus, when it is observed that in a period of purported extreme
economic stringency the Respondent still managed to retain a comple-
ment of about 55 or 60 employees-by the far the greater portion of
his total production and maintenance employees-provide overtime
work for them at a time when it claimed it had difficulty meeting its
weekly payroll, pay out substantial cash bonuses for Christmas, and
keep them occupied in gainful work of one sort or another, its as-
serted economic reason for the layoff of the chiller employees becomes
singularly unpersuasive. Nor can the Respondent justify its action
on the ground that it had no orders for chillers. This may have been
true, but the record shows that in the month of October the Respond-
ent received no orders at all for any of its products, that it had an
insignificant number of sales in November and December, and no
sales at all in January. Certainly if the Respondent can justify the
employment of 55 or 60 employees during a period of time when it
had no orders for any of its products, it cannot justify a need to lay
off 9 employees for the selfsame reason.
In view of the foregoing and the record as a whole, we find, con-
trary to the Trial Examiner, that the chiller employees were laid off
or discharged because they had engaged in union activities and sup-
ported the Union, and that the Respondent thereby violated Section
8(a) (3) and (1) of the Act. The fact that employee Snead who had
not signed a card for the Union was also laid off does not militate
against a finding that the layoffs and discharge of the entire chiller
group was discriminatorily motivated. The Respondent knew that
all the chiller employees, except Snead, were union adherents and
that by ridding itself of the group as a whole, particularly in the face
of a forthcoming representation election, it would frustrate union
organization among its employees. In the circumstances, the layoff
of Snead must also be regarded as discriminatory and in violation of
Section 8(a) (3) and (1) of the Act.'
3. Members Leedom and Fanning find, in agreement with the Trial
Examiner, that as the cards secured by the Union as proof of its
majority status were secured on a representation of the union agent
that "other than for the election, cards were not binding on people
that signed them," they were unreliable for the purpose of establish-
ing the Union's majority status. Accordingly, they find that the
Respondent did not violate Section 8(a) (5) of the Act by refusing to
mechanic, had served as a crew chief at one time, and had passed all tests requisite for
a United States Navy welder's certification On the basis of the testimony which the
Trial Examiner credited, Member Leedom would dismiss the complaint as to Faii cloth.
5 Ellis and Watts Products, Inc, 130 NLRB 1216, 1220, enfd 297 F. 2d 576 (CA 6).
MORRIS & ASSOCIATES, INC. 1165
recognize the Union.' As it is unnecessary to their decision they have
not considered whether the Trial Examiner correctly determined the
Union's majority status on the basis of the cards submitted.
THE REMEDY
Having found in agreement with the Trial Examiner that the Re-
spondent had engaged in and is engaging in unfair labor practices
in violation of Section 8(a) (1) and (3), we shall order the Respondent
to cease and desist therefrom and take affirmative action necessary to
effectuate the policies of the Act.
We have also found contrary to the Trial Examiner that the Re-
spondent's posting of the notice threatened employees with "harm"
and that it violated Section 8(a) (1). We shall therefore order the
Respondent to cease and desist therefrom and take affirmative action
necessary to effectuate the policies of the Act.
Unlike the Trial Examiner, we have further found that the Re-
spondent discriminatorily discharged Walter Faircloth I and dis-
criminatorily laid off Bobby Ray Raper, Percy Poole, Jarvis Johnson,
Robert Grice, Kenneth Johnson, Joseph Webb, and Jerry Snead be-
cause of their union activities. We shall, therefore, order the Re-
spondent to offer these employees immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and in conformance
with the Board's newly adopted policy of not tolling backpay 8 where
it has reversed the Trial Examiner, we shall order that the Respondent
make the above-named employees whole for any loss of earnings they
may have suffered by reason of the discrimination against them, by
paying each of them a sum of money equal to the amount that each
would normally have earned as wages from the date of the discrimina-
tion against them to the date of offers of reinstatement, less his net
earnings.9
In accordance with the Board's recently adopted policy of granting
interest on backpay and other monetary awards, the backpay obliga-
tions of the Respondent to the above-named employees and to Ray-
mond Strickland shall include the payment of interest at the rate of
6 percent to be computed in the manner set forth in Isis Plumbing cC
Heating Co.10
0 Member Brown does consider the aforementioned cards as proper proof of the Union's
representative status. However , as the panel majority is dismissing the Section 8(a) (5)
allegation , he finds it unnecessary to determine whether the Union in the circumstances
of this case has a numerical majority
I As stated above , Member Leedom does not agree with this finding.
8 A P.W. Products Co., Inc, 137 NLRB 25
IF. W. Woolworth Company, 90 NLRB 289.
10 138 NLRB 716 For the reasons set forth in the dissenting opinion in that case
Member Leedom would not award interest on backpay in this proceeding.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Morris R Asso-
ciates, Inc., Raleigh, North Carolina, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees about their union activities in a
manner constituting interference, restraint, and coercion in violation
of Section 8 (a) (1) of the Act.
(b) Discouraging membership in the Union, or in any other labor
organization, by discharging, laying off, or otherwise discriminating
in regard to the hire or tenure of employment of employees, or any
term or condition of employment.
(c) Threatening employees with discharge, plant shutdown, with-
drawal or promise of economic benefits, or other "harm" in order
to discourage union membership and activities.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Raymond Strickland, Walter Faircloth, Bobby Ray
Raper, Percy Poole, Jarvis Johnson, Robert Grice, Kenneth Johnson,
Joseph Webb, and Jerry Snead immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay they may have suffered by
reason of their discharge, in the manner set forth in the section of
the Intermediate Report entitled "The Remedy," as modified by
"The Remedy" section of this Decision and Order.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
and the right to reinstatement under the terms of this Order.
(c) Post at its plant at Raleigh, North Carolina, copies of the at-
tached notice marked "Appendix." 11 Copies of said notice, to be
furnished by the Regional Director for the Eleventh Region, shall,
11 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
MORRIS & ASSOCIATES , INC. 1167
after being duly signed by Respondent, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Respondent shall take reasonable
steps to insure that such notices are not altered, defaced, or covered
by any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken
to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate employees about their union activities
in a manner constituting interference, restraint, and coercion in
violation of Section 8(a) (1) of the Act.
WE WILL NOT discourage membership in International Union of
Electrical, Radio and Machine Workers, AFL-CIO, or any other
labor organization, by discriminating in respect to the hire, and
tenure or other conditions of employment of any employee.
WE WILL NOT threaten employees with discharge, plant shut-
down, withdrawal or promise of economic benefits, or other
"harm" in order to discourage union membership and activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer to Raymond Strickland, Walter Faircloth,
Bobby Ray Raper, Percy Poole, Jarvis Johnson, Robert Grice,
Kenneth Johnson, Joseph Webb, and Jerry Snead immediate and
full reinstatement to their former or substantially equivalent po-
sitions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suffered as
a result of the discrimination against them, together with interest
at the rate of 6 percent.
All our employees are free to become or remain members, or to re-
frain from becoming or remaining members, of any labor organiza-
tion. We will not discriminate in regard to hire or tenure of employ-
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment or any term or condition of employment against any employee
because of membership in, or activity on behalf of, any such labor
organization.
MORRIS & ASSOCIATES, INC.
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees 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 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, 1831 Nissen Building, Winston-Salem, North Carolina, Tele-
phone Number, Park 4-8356, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges of unfair labor practices duly filed on No-
vember 8 and December 4, 1961, against Morris & Associates, Inc., herein called
the Company or Respondent, the General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing dated December 28, 1961, alleging
that Respondent had violated Section 8(a)(1), (3), and (5) of the Act. An answer
admitting certain allegations of the complaint but denying the commission of any
unfair labor practices was filed by Respondent and a hearing was held before Trial
Examiner George J. Bott in Raleigh, North Carolina, on January 23, 24, and 25,
1962 I At the close of the hearing Respondent and Intervenors argued orally and
after the hearing General Counsel, Respondent, and Intervenors submitted briefs
which I have considered.
Upon the entire record, and upon my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is, and has been at all times material herein, a corporation owning
and operating a plant in Raleigh, North Carolina, where it is engaged in the fabrica-
tion and manufacture of refrigeration systems. During the 12-month period im-
mediately prior to the issuance of the complaint, which period is representative of
all times material herein, Respondent purchased and received materials valued in
excess of $100,000 from points outside the State of North Carolina, and shipped
from its Raleigh plant finished products valued in excess of $100,000 to points out-
side the State of North Carolina. I find that Respondent is engaged in commerce
within the meaning of the Act.
'At the opening of the hearing Wright Dixon, an attorney, claiming to represent 30
employees of Respondent, appeared and moved to intervene in their behalf. General
Counsel's complaint alleged that Respondent had refused to bargain with the Union as
the majority representative of Respondent's employees The Intervenors controverted such
allegation and claimed to be able to show that the Union had not been designated by a
majority of employees in an appropriate unit. I permitted limited intervention to the
Intervenors as their interest might appear during the proceeding. Pursuant to per-
mission granted at the hearing the Intervenors filed an answer on March 2, 1962. The
answer Is hereby admitted in evidence.
MORRIS & ASSOCIATES , INC. 1169
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and Machine Workers, AFL-CIO , herein
called the Union, is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence as to alleged violations of Section 8(a) (1) of the Act; findings and
conclusions with respect thereto
1. Alleged acts of interference , restraint , and coercion by persons whose supervisory
status is conceded
In July 1961 , when the principal events in this case began, Respondent employed
between 70 and 75 production and maintenance employees on 2 shifts. On July 14,
1961, about 3 a.m., Joseph Williams, field representative of the Union , met with
Respondent 's night-shift employees in a parking lot behind Respondent 's plant after
the employees had finished work. Williams addressed the employee gathering which
lasted about 15 minutes . Of the approximately 25 employees present, which was
the entire shift, about 20 signed cards for the Union.
Employee Raymond Strickland , employed as a crew chief , signed a card for the
Union during the July 14 meeting in the parking lot. That evening as he was
going on duty on the night shift , Carl Ray, foreman of the day shift , approached
him and told him that Ray understood that Strickland had gotten the employees
together the night before and signed union cards. Ray added , according to Strick-
land, that he knew all but one of the employees signed cards, and where and when
they met the union representative . Strickland testified that at this point Milo
Owens, production engineer , approached and Ray told Owens that Strickland had
signed a union card.
Strickland also testified that he went to a union meeting on a Saturday in the
latter part of September 1961 and on the following Monday, while he was getting
his work assignment from Henry Boling, Foreman Ray said to Boling, "Fire this
man if he steps out of line; he is a union man . He was at the union meeting Sat-
urday night ." After Ray made the above remark , Strickland went into Milo Owens'
office and told him that he had gone to a union meeting the previous Saturday and
. it seems everybody else UI the shop does know about it." Owens replied that
the Company was counting on the crew chiefs' aid in keeping the Union out and
also said the Union was taking money out of the employee 's pocket because money
was being taken from the company profit-sharing plan for "lawyer 's fees." Owens
did not deny Strickland 's account of this episode . Strickland related another con-
versation with Foreman Ray about the Union which occurred on Monday , October
16, 1961. According to the employee , Ray told him that the Company had the
employee "pegged again" for starting the Union and that William Morris, president
of Respondent, had been to see Ray twice on Sunday about the matter. Ray told
Strickland that Morris wanted to know of there was some way to change Strickland's
mind. Ray added that, from all reports , Strickland was "a hundred percent" with
the Union and suggested that Strickland talk with Morris. Strickland went to Mor-
ris' office and spoke with him for about 11/2 hours about the Union . Morris, ac-
cording to the employee, interrogated him about the Union and told him that if the
employees "walked out the door they would be replaced , they would be automatically
fired, because we have a right -to-work law in this state."
Foreman Ray did not deny that he questioned Strickland during the evening of
July 14 about the meeting in the parking lot early that morning and I find that the
interrogation occurred as described by Strickland.
Ray admitted that he told Boling in Strickland's presence , "Fire this man" but
testified that he was joking and apologized later to Strickland. He explained that
Strickland and he were good friends and were always joking with each other. I
do not credit Ray's explanation . Strickland in his testimony had stated that after
Ray made the remark about firing him he followed Ray and protested that he had
the right to do what he pleased when he was off work but that Ray made no
answer. Ray did not deny this testimony . Receiving no satisfaction from Ray,
Strickland went to see Owens in his office as described above. At that time Owens
told Strickland that the employees were losing benefits because of the Union. Ray
was present in Owens' office while Strickland was there. In sum, I find that Ray
was serious when he made the statement to Boling and that, in any event, his mental
attitude at the time was unimportant for it appears that Strickland did not understand
the remark to be lightly made since he immediately sought out a higher official to
defend himself . In addition , in the context of Ray's repeated interrogation coupled
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to statements showing his awareness of the employees' union activities, the remark
was clearly coercive.
Foreman Ray also denied that he had spoken to Strickland about President
Morris' concern for Strickland's union attachment. Here again I credit Strickland
as against Ray on the basis of their respective demeanors and the cohesiveness of
Strickland's story. Ray did not deny that Morris had been to see him about Strick-
land as Strickland testified, and Morris in his testimony admitted that he had a
conversation with Strickland in his office about the Union. Morris did not deny
that he had a conversation with Ray about Strickland or make any reference to
the alleged Sunday visits to Ray to discuss Strickland. Morris implied in his testi-
mony, although he did not specifically so state, that Strickland's visit to his office to
discuss the Union was Strickland's own idea. He did not deny Strickland's testi-
mony about the interview. I find that Ray interrogated Strickland as testified to
by Strickland, told him of Morris' concern, and suggested the meeting with Morris.
I also find that Morris interrogated Strickland and threatened to discharge any
employee who engaged in a strike.
I find and conclude, on the basis of the above, that Respondent by its interroga-
tion of Strickland and its threats of reprisals violated Section 8(a)(1) of the Act.
Employee Percy Poole testified without contradiction, and I credit him, that on
July 14, the day he signed a union card in the parking lot, Milo Owens and Foreman
Ray appeared at his place of work and questioned him about the Union. He was
asked who had signed union cards and whether he had. Ray hinted that employee
Dupree had signed a card but Poole denied it. Ray stated, "Well, that's all right .
we know who signed them anyhow." Ray also stated in this conversation that Presi-
dent Morris ". . . wasn't going to have any union in." On the same day Ray
gathered the entire shift together and told them that ". . . he wasn't going to have
a union.. " I find that by Owens' and Ray's interrogation of Poole in the circum-
stances described Respondent violated Section 8(a)(1) of the Act.
Employee Jarvis Johnson signed a union card on July 14 and distributed cards to
employees. He testified that about a week after he signed his card Foreman Ray
told him, "If you keep messing with the union, I'm going to put you on a union
job." Ray denied making the remark. I credit Johnson and find that Ray made
an implied threat of reprisal to him because of his union activities.
Johnson also testified about conversations he had with J. B. Chatham, Respondent's
general superintendent, during an automobile trip to an out-of-town assignment. He
stated that during the trip, which occurred on or about August 28, 1961, Chatham
said the Union would damage the employees if it organized Respondent; that Presi-
dent Morris would take employee life insurance away from them and deprive them
of participation in the profit-sharing plan if the Union was successful, and that
Morris would "shut the doors" before the Union would be permitted to organize
Respondent. Chatham admitted to conversations about unions with Johnson but
testified that it was merely Chatham 's views as against Johnson 's based upon past
experiences , and that the effect of unionization of Respondent was not discussed.
He denied that he said Morris would take away benefits and stated that the discussion
of "door closing" was in relation to another plant that had closed because of tax
problems. I do not credit Chatham and consider his explanation generally in-
credible. I find the facts to be in accord with employee Johnson's testimony. By
Ray's and Chatham's threats of reprisal Respondent violated Section 8(a)(1) of
the Act.
Employee Dixie Weatherspoon signed a union card for Williams, the Union's field
representative, at his home on July 13, 1961, and made arrangements for Williams
to see the night-shift employees on July 14. Weatherspoon testified that on the
following Monday, which was the first workday after the cards were signed, Foreman
Ray said, "Are you the little son of a bitch that went up to the parking lot there and
got the union man." Production Engineer Owens then approached and asked
Weatherspoon if he thought a union would do any good at Respondent and if
Weatherspoon had ever worked for a union "of that type." About a week later,
according to the employee, Ray told him that he knew Weatherspoon had contacted
the Union. Owens did not deny questioning Weatherspoon as described, but Ray
denied making the scurrilous remark to Weatherspoon. He testified that he merely
asked the employee if the meeting in the parking lot "was on company time . .
or on their own time." There was no suggestion in the record by anyone that the
parking lot meeting had been other than after working hours. Ray's explanation
of his inquiry to Weatherspoon is unbelievable. I find that he made the remarks
attributed to him by the employee and that Owens also questioned Weatherspoon
about the Union. I find that by Ray's and Owens' interrogation of Weatherspoon
and the implied threat contained in Ray's description of Weatherspoon, Respondent
violated Section 8(a) (1) of the Act.
MORRIS & ASSOCIATES, INC. 1171
2. Alleged acts of interference, restraint, and coercion by persons whose
supervisory status is in issue
The complaint alleged that Henry Boling and Frank Giles are supervisors within
the meaning of the Act. Respondent denied the allegation. On October 9, 1961,
Reed Johnston, Regional Director for the Eleventh Region of the National Labor
Relations Board, acting pursuant to authority delegated to him by the Board under
Section 3(b) of the Act, issued a Decision and Direction of Election in Case No.
11-RC-1527 (not published in NLRB volumes), involving the Union and Re-
spondent in this case, in which he found, inter aha, that Boling and Giles (Chiles
in the decision) should be excluded as supervisors from the bargaining unit found
appropriate by him after due hearing because "they responsibly direct other em-
ployees. . . I consider myself bound by this finding of the Regional Director
and precluded from reviewing it by Section 102.67(b) and (f) of the Rules and
Regulations, Series 8, of the Board, since no review of the Director's findings was
sought by any party within the time provided in the rules. In any event, on the
basis of the whole record, I find and conclude that Boling and Giles are supervisors
within the meaning of the Act since they responsibly direct others. Boling and Giles
alternate on a monthly basis as management's sole representative on the night shift.
They direct about 25 employees who are under crew chiefs. If the crew chief
cannot solve a problem he consults Boling or Giles. Boling and Giles perform
identical tasks at night. The record shows that Giles secured a wage increase for
at least one employee and that Production Engineer Owens consulted Boling and
Giles about employees' work prior to their layoff. Moreover, President Morris in his
testimony referred to Boling and Giles as "night foremen" and a table of organiza-
tion in Respondent's files lists them as foremen.
Employee Bobby Raper testified that on October 19, 1961, Giles told him Presi-
dent Morris had told Giles that if the Union came in the plant would close down.
Giles added that he believed that Morris would do so. Giles, according to Raper,
also stated that there were "legal ways" of getting rid of union members. Giles did
not testify and I find that he made the statements testified to by Raper. By such
threats to close down or get rid of union members Respondent violated Section
8(a)(1) of the Act.
Employee Poole testified without contradiction that Giles told him on October 19,
1961, that Morris had told Giles he did not intend to have a union in the plant and,
if necessary, would move the plant to Georgia. I find and conclude, that by so
threatening an employee with reprisals Respondent violated Section 8(a)(1) of
the Act.
Poole also testified that on or about October 10, 1961, Giles promised him a wage
increase if the employee would help keep the Union out of the plant and Giles also
interrogated the employee about employee attendance at a union meeting. I find
and conclude that by such promise of benefit and interrogation Respondent violated
Section 8 (a)( I) of the Act.
3. Other alleged acts of interference
An amendment to complaint was issued shortly before the hearing alleging that
Respondent had violated Section 8 (a)( 1 ) of the Act in that:
On or about July 1961, and continuously thereafter, the Respondent posted
a notice to all employees at its Raleigh plant informing the employees that it
was Respondent's definite view that if the Union were to come in at the plant
it would work to the serious harm of the employees.
The Respondent stated its answer orally on the record at the hearing ad-
mitting that ". . . in the summer of 1961 and for some time thereafter .. .
Respondent had posted such a notice.
I find that the statement set forth above is a statement of opinion containing no
promise of benefit or threat of reprisal on Respondent's part and is privileged under
Section 8(c) of the Act. By posting such statement Respondent did not violate
Section 8 (a)( 1 ) of the Act.2
2In 1Vhtte Oak Acres, Inc., 134 NLRB 1145, cited by General Counsel, the Trial
Examiner had found in considering an almost identical notice that it was illegal in that
it contained an " implied threat that if the Union came in `serious harm' would
be suffered by employees as a matter of `company polacy "' [Emphasis supplied 1 I do not
so read the notice.
662353-63vol . 138-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Alleged violations of Section 8(a) (3) of the Act; findings and
conclusions with respect thereto
1. Respondent 's defense
The complaint alledged that Respondent discriminatorily laid off 10 employees
on certain dates in October 1961. Respondent admits that it laid off eight of the em-
ployees named in the complaint and discharged the other two. With respect to the
layoffs, Respondent contends that the men were laid off because their services were
not required because of lack of business . The two dischargees were discharged at or
about the time of the layoff. Respondent contends , because a reduction in force was
required by economic conditions and the dischargees ' services were unsatisfactory
or not suited to the requirements of Respondent 's business . Contrary to the con-
ventional treatment in these cases , Respondent 's evidence to support its defense might
well, for reasons of clarity and simplicity , be set forth first.
Respondent's president , William Morris , testified as follows: Respondent manu-
factures , repairs, installs , and maintains refrigeration , chilling, and ice-making ma-
chinery primarily for the poultry industry . Respondent 's business in the summer
of 1961 was "pretty good" but began to fall off in September , and in October the
Company received no orders at all for its products . During the month of November
total sales were $20,000 and in December $8,000. During January 1962 Respondent
made no sales . The $28,000 of sales in the November -December -January period
contrasted with an average of $200,000 per month in normal periods. Morris at-
tributed poor business in his company to the condition in the poultry industry
generally which he described as the worst in his experience.
Respondent borrowed capital in order to operate. As business conditions got
worse Respondent's officials were in touch with their bank which showed an increas-
ing reluctance to lend Respondent money. In October the bank refused Respondent
a loan in order to build products for inventory and refused money for anything
except secured loans against firm sales contracts.
Respondent was required to reduce costs and Morris made the decision to cut
the labor force . Two crews of employees , one from each shift, were selected for
layoff. Morris explained his selection of these crews on the ground that they were
primarily engaged in the manufacture of chillers and the chiller market had become
saturated . The Company had no orders for chillers . The men laid off were in the
"chiller groups."
It appeared that at the time of the hearing Respondent still employed between
55 and 60 production employees as compared to between 75 and 80 on or about
October 1 , 1961 , and this despite Respondent 's claim that it had practically no
orders. Morris testified, however , that the employees were used in various capacities.
Some of the equipment manufactured by Respondent is leased to the customer and
the contract requires Respondent to maintain the equipment in the field. Other
equipment sold has been redesigned since sale , and modification work on these
products occurs. The maintenance work is at no cost to the customer but Respondent
receives income from the lease . In addition to the above work required by existing
agreements with customers , Respondent had been assembling components from stock
for use on customer demand A large part of the work being done by the employees
has been experimental development and research . In addition , the Company has
manufactured a new type of chiller made basically from material in stock which it
hopes to sell , and an experimental model ice -making machine has been produced
which is ready for marketing
Morris also explained that although a large amount of overtime was worked
in October 1961 despite lack of orders , this work was necessary to meet delivery
deadlines on orders obtained prior to that time With respect to the fact that the
Company worked two shifts in October and still does , he testified that such is the
efficient and economical way to utilize existing plant facilities and tools.
Charles Farinholt , Respondent 's treasurer , testified and corroborated President
Morris about the lack of orders since October 1961 to the time of the hearing, and
the Company 's inability to secure bank credit in order to build products for inventory
He also corroborated Morris by describing from company records the kinds of work
the Company had been doing since the lavoff Milo Owe^q, production engineer.
testified and corroborated Morris in regard to the state of the Company' s business
in the 3-month period prior to the hearing, and the types of work that the Company
had h en dome sinc ° October 1961
Although I have found above that Respondent exhibited an animus against the
Union and interfered with. res'rained , and coerced its emplovees in violation of the
Act, it would appear , nevertheless, on the basis of the company officials' testimony
MORRIS & ASSOCIATES, INC. 1173
set forth above, which is uncontradicted in all its essentials , that Respondent has
made out a strong case that its general reduction in force and the selection of the
"chiller groups" for layoff was motivated by economic considerations. I make this
observation, of course, without first having set forth the testimony of the alleged
discriminatees, but analysis of the evidence they gave reveals nothing to overcome
Respondent's evidence that a general reduction in force was necessary and little,
except in one case, to indicate that Respondent was discriminatorily motivated in its
selection of employees for layoff or discharge.
2. The discharges
Walter Faircloth, one of the two employees discharged at the time of the general
layoff, signed a card for the Union on the morning of July 14, 1961, at the parking
lot. He also obtained the signatures of a few employees to union cards . I find on
the basis of Respondent 's efforts to learn about the union activities of its employees,
and Owens' and Ray's admissions that they knew who had signed, that Respondent
knew Faircloth went to the parking lot and signed a card. There is no evidence,
however, that Respondent knew Faircloth was any more active than any other
employee. No management agent addressed coercive remarks to him.
Faircloth worked for Respondent for about 3 years as a welder and mechanic
He testified that on the day of his discharge he was told by Owens that the work had
given out He was given a layoff slip which read: "Routine work had given out
and unable to do the new type of work." He stated that Owens did not tell him
,what the new type of work was. Faircloth said that he worked on chiller bases
Owens testified that Faircloth had originally worked on the bases of round-type
chillers but that such work started to taper off in early summer or spring of 1961.
Faircloth was tried out on other types of work but since he could not read blue-
prints he made mistakes which had to be reworked. Faircloth took three times as
long to do the work as other employees. Owens tried out Faircloth under Crew
Chief Dupree who told Owens that Faircloth was unsatisfactory. These transfers
took place, according to Owens, before anyone had heard of the Union. Since
Faircloth was unadaptable to other work he was permanently severed at the time of
the layoff. Owens' testimony, which was corroborated by Morris, about the chiller
bases and his efforts to find work for Faircloth stands uncontradicted in the record
and I' credit it. I find that General Counsel has not established by a preponderance
of the evidence that Faircloth was selected for discharge because of his union
activities.
Richard Dupree had worked for Respondent for about 3 months at the time of his
discharge. It appears that he signed a union card on August 14, 1961, at his home
but there is no evidence about the extent of his union activities. Owens testified
that Dupree was a probationary employee who had not been put on permanently
at the time of his discharge. During the probationary period Owens learned that
Dupree's work was unsatisfactory primarily because of Dupree's disinterest in it.
Dupree would leave the job for 15 or 20 minutes at a time Prior to Dupree's dis-
charge Owens checked with Foreman Ray, and two crew chiefs who felt that Dupree
would be better off in other work. Richard Dupree is the brother of Douglas Dupree
who is still employed by Respondent as a crew chief. Richard Dupree did not testify
and I credit Owens in his explanation of Dupree's discharge. I find that General
Counsel has not established by a preponderance of the evidence that Richard Dupree
was discriminated against as alleged.
3. The layoff of the "chiller groups"
In the cases of the employees set forth below Respondent's defense is described
above in greater detail in President Morris' testimony, namely, that because of lack
of orders necessitating a reduction in force, employees working primarily on chillers
on the two shifts were selected for layoff because the forecast for the chiller business
was particularly hopeless Respondent states that it will reemploy the laid-off em-
ployees when their services are needed (Strickland has already been reemployed).
Bobby Ray Raper worked on the night shift in Douglas Dupree's crew and at the
time of his layoff he had been employed by Respondent for about 20 months
Raper signed a union card in the parking lot on July 14, 1961. He testified that on
October 19 rumors circulated through the shop that some employees would be laid off
that night. Around 11 p m , while he and two other employees were working in
the warehouse, Night Foreman Giles told him in the presence of the others that
President Morris said he was not going to have a union and if one did come into the
plant he would close the doors. Giles also told him that ". . . there were ways
and means of getting rid of union members in a legal way . . ." About a half hour
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before quitting time , Raper was called into Owen 's office and told that because of
lack of orders and other business conditions , employees had to be laid off and that
Raper was among the group to go.
Percy Poole also worked on the night shift in Douglas Dupree's crew. On the
day Poole signed a card for the Union he was interrogated about the Union by
Owens and Foreman Ray . Subsequently , he was questioned by Giles about a union
meeting. On the night of Poole's layoff Giles told hun that Morris was not going
to have a union in the plant and, if necesary, would move to Georgia. On
OOctober 10 or 11 , Giles told Poole , when he asked for a raise , that Giles wanted
the employee to help keep the Union out. Before the close of the shift on October 19,
Poole was notified by Owens of his layoff and told that the work had "given out"
Jarvis Johnson worked in Raymond Strickland 's crew on the night shift. At
the time of his layoff on October 19 , 1961 , he had been employed about a year. As
set forth above in more detail in subsection A, he signed a union card at the parking
lot and secured signatures of other employees . Foreman Ray made a threatening
remark to him about his union activities , and Chatham discussed the Union with
him on their out-of-town trip , making coercive remarks in the process. Johnson
left on the field trip with Chatham on or about August 28, 1961. He was sent
back to the home plant in October 1961 before the job he was working on was
finished , but it appears that the customer did not make his facilities available for
completion of the work . A few days after Johnson returned to the Raleigh plant
he was laid off with the rest of Strickland 's crew.
Robert Grice, Kenneth Johnson , Joseph Webb, and Jerry Snead , laid off on
October 19, 1961 , allegedly for discriminatory reasons, did not testify . Johnson,
Grice, and Snead worked in Raymond Strickland 's crew and Webb in Douglas
Dupree's. Snead had been employed for about 2 months when laid off but the
record does not disclose the employment history of the other three employees. Grice,
Johnson, and Webb had signed union cards in the parking lot on July 14, but the
record is silent about Snead 's activities . No coercive statements were directed at
any of the four by Respondent . Because the meeting in the parking lot on the
morning of July 14 was well known to Respondent , I find that Respondent knew
that Johnson , Grice, and Webb signed union cards.
In the light of Respondent 's defense , my examination of the testimony set forth
above of the alleged discriminatees who testified , as well as consideration of all
the circumstances surrounding the layoff of those who did not, such as their activities
in the Union and employment in the crews selected for layoff, leads me to conclude
that, as in the cases of the dischargees , Faircloth and Dupree , General Counsel
has not established by a preponderance of the evidence that the layoff of the so-called
"chiller groups" and the employees employed therein (with one exception) was
discriminatorily motivated.
The General Counsel established in his case -in-chief, as I have indicated before,
hostility to the Union and the elimination of certain known union adherents who, in
certain cases, had been interfered with and restrained by coercive interrogation and
statements . In addition , evidence such as the working of substantial overtime on
a two-shift basis right up to the day of the layoff would permit an unfavorable in-
ference to be drawn against Respondent in the circumstances . On the other hand,
Respondent 's clear need for reduction in costs implemented by a reduction in staff,
and its plausible and unrebutted explanation of why it selected the employees who
were in the chiller groups for layoff, convinces me, and I so find, that Respondent
has successfully rebutted General Counsel 's case. I find that in laying off Robert
Grice, Jarvis L. Johnson , Kenneth Johnson , Percy Poole, Bobby Raper, Jerry Snead,
and Joseph Webb, Respondent did not discriminate against them within the meaning
of Section 8(a)(3) of the Act.
4. Layoff and reinstatement of Crew Chief Raymond Strickland
Much of the evidence in Strickland 's case is set out in subsection A of this section.
Strickland was hired by Respondent in 1958 as a helper and after various promo-
tions was made a crew chief in charge of a group of men . Strickland 's particular
skill is that of a mechanic . He was laid off in the October 19 layoff with the rest
of his crew . The crew chief of the other chiller crew, Douglas Dupree, was re-
tained. Strickland was reemployed by Respondent on November 20, 1961, but not
to his old job . He has been doing some welding and "helper's work...:.
Strickland signed a card with the other night-shift employees on the morning of
July 14. That night Foreman Ray accused him of getting the employees together
in the parking lot and then told Owens , production engineer , that Strickland had
signed a card.
MORRIS & ASSOCIATES, INC. 1175
In September Strickland attended a union meeting and shortly thereafter Ray
made the remark to Supervisor Boling in Strickland's presence about firing Strick-
land if he stepped out of line since he was a union man. After protesting to Ray
about the exercise of his rights without avail. Strickland sought out Owens in his
office. Owens told Strickland that the Company was counting on the crew chiefs'
assistance in keeping the Union out.
Three days before Strickland's layoff Ray told him that the Company had him
"pegged again" for starting the Union and that Morris wanted to know if ,the
employee's mind could be changed. Ray suggested a meeting with Morris. Strick-
land saw Morris in the president's office and the merits of unionism were discussed,
but Strickland, in his words, did not "submit" to Morris' strong opinions. Three
days later Strickland was let go.
In my opinion, the above facts reveal that Respondent seized upon an otherwise
legitimate layoff to discipline a crew chief who it felt was disloyal to it in joining
the Union rather than aiding Respondent against the Union. Milo Owens did not
deny that he told Strickland the Company had been counting on the loyalty of
the crew chiefs who occupy a position above rank-and-file employees. In addition,
only 3 days before Strickland's layoff President Morris who certainly knew that re-
trenchment was necessary and imminent was trying to convert Strickland. The
logic of the situation clearly is that if at that time Strickland had seen the light he
would have been saved for employment. I find that in selecting Crew Chief Strick-
land for layoff Respondent discriminated against him within the meaning of Section
8(a)(3) of the Act.
5. Discrimination in the assignment of work
The complaint also alleged that Respondent had discriminated against employees
by assigning them less desirable work "and/or" work out of their classifications
because of their union membership. The only evidence in the record in this regard
is found in the testimony of Dixie Weatherspoon. Weatherspoon had been accused
by Ray of bringing the union representative to the parking lot on July 14, 1961. He
testified that later at a time he could not recall he was assigned to breaking con-
crete with a sledge hammer which was not normal for a mechanic. He also de-
scribed an occurrence when he was sent to move heavy machinery. Production
Engineer Owens testified without contradiction, and I credit his testimony, that the
cement slabs were small and Weatherspoon had a helper to do the work, and that,
in the case of the heavy machinery, he sent three men with Weatherspoon and told
Weatherspoon not to do any heavy work but merely supervise the job. I find that
this allegation of the complaint is not supported by a preponderance of the evidence
and that Respondent did not violate the Act as alleged.
C. The refusal to bargain collectively with the Union
1. The Union's majority status
As of August 28, 1961, when the Union requested bargaining by mail, there were
approximately 70 employees in the unit alleged as appropriate in the complaint.
General Counsel, as proof of majority designation, was able to present in evidence
only 37 union cards which he claims are authentic. The signature on one card,
however, is in dispute and there is some question about the dates when some of the
cards were signed. In addition, Respondent and General Counsel are in dispute
about the placement of certain employees in the bargaining unit. Regardless of
the resolution of specific questions such as dates of designation and eligibility, I
find that there is a more serious problem about the reliability of the union cards
used to demonstrate majority designation which must be resolved against General
Counsel .3
' Although I am disposing of the case on a different ground the following facts may be
helpful to the Board if it needs to reach them. After the Union made its bargaining
request it filed a representation case with the Board . On October 9, 1961 , the Regional
Director Issued a Decision and Direction of Election in which he found , inter alia, that
"all production and maintenance employees at the Employer's Raleigh , North Carolina,
plant, but excluding office clerical employees , professional and technical employees, and
guards and supervisors as defined in the Act ," constituted an appropriate unit. The
Union subsequently withdrew its petition for an election and charged the Respondent
with a refusal to bargain under Section 8 ( a) (5) of the Act. It Is General Counsel 's theory
that Respondent committed unfair labor practices in order to undermine the Union's
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record contains 20 union cards which were obtained from employees from
the night shift who attended the meeting in the parking lot behind the plant at 3 a.m.,
July 14, 1961. All of these cards, as well as the rest of the cards in evidence, contain
across the top of the card in approximately 18-point boldface type the statement:
IUE-I WANT AN N.L.R.B. ELECTION-IUE
Below the boldface type, in approximately 8- or 10-point lightface type, are separate
paragraphs in which the signator authorizes the Union to petition the National Labor
Relations Board for an election "as soon as possible," and authorizes the Union to
aot as his bargaining agent with the company "in regard to wages, hours and working
conditions." Below the authorizations are the usual spaces for names, addresses, and
departments.
Joseph Williams, field representative of the Union who attended the meeting
and addressed the employees, testified that the meeting lasted for 15 for 20 minutes.
He could not remember exactly what he told the employees but stated that he
usually read the card to similar groups. He admitted, candidly, that he might have
discussed an election with the employees and added that "I couldn't say that I recall
telling them anything; I don't remember the particular incident about the cards."
Under cross-examination by counsel for Intervenors, Williams said he showed the
union card to the assembled group and conceded that he told them, ". . that other
than for the election, cards were not binding on the people that signed them. .
Certain of General Counsel's witnesses who were at the parking lot testified
that statements about an election were made in connection with the card signings.
Jarvis Johnson testified that Williams said that he "had heard from some people
that were interested in a union, and in order to have an election, they would have
to have . . ." cards signed. Johnson stated that the card was read to him but that
he did not read it since he had signed many before for another union and "they all
wound up to the same thing, anyhow," namely, an election He added that such was
his purpose in signing the card.
majority and that its refusal to bargain with the Union was not motivated by good-faith
doubt as to the Union's majority. In the absence of an election and certification of
representatives General Counsel relies on the cards which the Union obtained in its cam-
paign for proof of majority and on the Regional Director's unit finding as the area
within which majority must be tested
'General Counsel's Exhibit No. 9 contains the names of 80 "shop employees." Examina-
tion of this list in the light of the Regional Director's unit finding and the Union's
majority claim of August 28, 1961, shows the following: Four employees, namely, Boling,
Giles, J. B Chatham, and Carl Ray are supervisors and should be excluded Two em-
ployees, E. N Adams and T C. Merritt, were separated from employment before the
Union's demand and are, therefore, excluded Four employees, Bobby Strickland, Clyde
Utley, C R Brown, and Dallas Glover were hired after the Union made its bargaining
demand and are similarly excluded I find, therefore, that 10 employees on Exhibit
No. 9 were not in the unit at the time of the demand, or immediately thereafter, and,
consequently, there are 70 employees in the unit against which the cards must be tested.
On the other hand, I do not think the following employees are to be excluded. Charles
Barnett and G. S. Godwin were hired for temporary employment but were employed when
the demand was made. L. E. Harrison, F. L Hayes, P. J. Tutor, and Stanley Holt
work only when needed but work a substantial number of hours and were working at the
time of the demand. Similarly, Ronnie Bell attends college but works a substantial num-
ber of hours a week in production. The Regional Director in his unit finding made cer-
tain specific exclusions but did not exclude temporary, part-time, or student part-time
employees I find that the employees named, therefore, are to be counted in computing
the Union's majority.
Of the 37 union cards in evidence 1 purports to be signed by an employee named
James Hamilton There is no such employee James Hamlin testified that the signa-
ture on the card is not his and I credit him. Another card is signed by employee Nathan
Eugene Adams. Adams was separated before the Union made a demand. The loss of
Hamlin (Hamilton) and Adams leaves the Union with 35 out of 70-not a majority, if
I am correct in my unit findings . On the other hand, I have examined the evidence re-
lating to cards where the dates of execution are questioned and find that they were all
obtained before September 1, 1961, but because they contained no date, the Regional
Director of the Board returned them to the union representative in order that they might
be properly dated Williams did this. The cards which fall into this category are those
of: Leco Wright, Hubert Parris, Joe Alston, E. H. Horton, Gerald Pleasant, Harold O.
Strickland, and James M Smith.
MORRIS & ASSOCIATES, INC. 1177
Raymond Strickland testified that Williams said that signing the card would give
him the right to represent the employees "in the election" and that it was necessary
to have cards signed ". . . so that they could get an election." Bobby Raper con-
ceded that the employees at the lot were told that signing a card was for the purpose
of having an election to determine whether the employees wanted the Union.
Percy Poole testified that Williams read the card and "explained it." He added,
however, that Williams told the men that the purpose in signing cards was to deter-
mine whether there was ". . . interest enough to have [an] election . .." and that
a certain number of cards were necessary to get an election.
Dixie Weatherspoon, who made the arrangements for Williams to meet the
employees after work, and who spread the word that evening about the meeting,
admitted that he told the employees on the night shift that the purpose of the meeting
"was to have an election to determine whether the union could represent the
employees
Some of Intervenors' witnesses were also present in the parking lot on July 14,
1961, and signed cards for the Union Employee Gurley testified that Williams said
that the purpose of the cards was to have an election "when it was time," and that
no one would ever see the cards. He did not read the caid and he said he relied
on Williams' representations. Employee Stillwell said Williams stated during the
meeting that the Union would like to have representation through an election.
Douglas Dupree, who attended the meeting, testified that Williams said that signing
the cards ". . . wouldn't amount to anything except that he would have an election
and he would represent the men at the election " He stated that he signed on
the basis of that statement. Intervenors' witnesses Le Neave and Whaley testified
substantially the same as the others with respect to statements made by Williams at
the parking lot.
The testimony of Intervenors' witnesses is uncontradicted and is, indeed, con-
sistent with Williams' admissions and the testimony of General Counsel's witnesses.
I credit the testimony.
Other similar representations were made to other employees who signed cards for
the Union at other times. William Stinson said that he signed a card in August
1961 for Jarvis Johnson who told him that if he signed a card they could have a
vote, but that the card did not mean anything more than that. Employee James
Smith stated that he signed a card for Williams on his representation that it was
for the purpose of getting an election through the Board. E. H. Horton testified that
he is unable to read and signed a card for Williams at his home. Williams told him
the purpose was merely to give the Union the right to get an election and did not
mean anything else. Employee Stallings testified that Jarvis Johnson told him that
the card did not mean anything but it was the election that counted. Employee
William Smith testified that cards were signed at a union meeting after Williams told
employees that a "certain amount of cards" were necessary in order that the em-
ployees could "vote for or against the union " The testimony of these witnesses
is uncontradicted and I credit it.
It appears on the basis of the above evidence that throughout the Union's drive
to secure evidence of representation employees were told that the cards would be
used to obtain a Board election. Twenty cards were obtained in such circumstances
at the very beginning of the campaign on July 14, 1961, and a substantial number
in the weeks that followed. Key solicitors, including the Union's principal representa-
tive on the scene, participated in making the representations. The Board is properly
wary of investigating the subjective reactions of employees who sign authorization
cards, but where the purported authorization is questionable on its face in em-
phasizing the election features of the designation, what the employees are told
assumes greater importance regardless of individual impressions on reactions testified
to after the event. I find on the basis of what more than two-thirds of the employees
who signed union cards were told at the time of signature that the cards in evidence
are unreliable for the purpose of establishing the Union's majority status? I find and
conclude, therefore, that since the Union was not designated by a majority of em-
ployees, Respondent did not violate Section 8(a)(5) of the Act by refusing to
recognize the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Company set forth in section III, above, occurring
in connection with the operations of Respondent as described in section 1, above,
Englewood Lumber Company, 130 NLRB 394. See also N.L.R B. v H Rohtstein &
Co, Inc, 266 F 2d 407 (CA 1) ; Fred Snow, Harold Snow and Tom Snow d/b/a Snow
& gong, 134 NLRB 709 Cf. Gorbea, Perez & Morell, S en C, 133 NLRB 362
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a close , intimate , and substantial relation to trade, traffic , and commerce among
the several States, and such of them a. have been found to constitute unfair labor
practices , tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company engaged in unfair labor
practices in violation of Section 8(a) (1) and ( 3) of the Act, it will be recommended
that the Respondent cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondent offer employee Raymond Strickland
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges , and make him whole
for any loss of earnings he may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that which he would have earned
as wages from the date of the discrimination against him to the date of offer of
reinstatement , and in a manner consistent with Board policy set forth in F. W.
Woolworth Company, 90 NLRB 289.
It will also be recommended that the Respondent preserve and , upon request.
make available to the Board, payroll and other records to facilitate the computation
of backpay.
It will also be recommended , in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Raymond
Strickland , thereby discouraging membership in the Union, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By engaging in the conduct set forth under section III, A , 1 and 2, above,
Respondent interfered with, restrained , and coerced its employees and has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
5 The Respondent did not discharge Richard Dupree , Walter Faircloth, Robert
G. Grice, Jarvis L. Johnson, Kenneth Johnson , Percy Poole, Bobby Raper, Jerry
Snead , and Joseph Webb in violation of Section 8(a)(3) of the Act.
6. Respondent did not refuse to bargain collectively with the Union in violation of
Section 8(a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Aztec Ceramics Company, a Division of The Texstar Corpora-
tion and International Brotherhood of Operative Potters,
AFL-CIO. Case No. 23-CA-1270. September 28, 1962
DECISION AND ORDER
On May 10, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
138 NLRB No. 122.