Park Sherman Co.

National Labor Relations Board - Board Decisions

Dec 7, 1966

161 N.L.R.B. 1559 (N.L.R.B. 1966)

PARK SHLRMAN CO 1559
8(a) (1) of the Act in this regard Accordingly, I will recommend that paragraph
10(b) of the complaint, as amended at the trial, be dismissed
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above, relating to Cronn's dis-
charge occuriing in connection with its operations as set forth in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce
V THE REMEDY
Having found that Respondent engaged in the unfair labor practices set forth
above, the Recommended Oider will direct Respondent to cease and desist there-
fiom and to take the affirmative action normally required in such cases to effectu-
ate the policies of the Act Any backpay found to be due to Cronn shall be com-
puted in accordance with the formula set forth in F W Woolworth Company, 90
NLRB 289, and shall include interest in the amount and manner provided for in
Isis Plumbing & Heating Co, 138 NLRB 716
Upon the basis of the foregoing findings of fact and upon the entire record in
this case, I make the following
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of Section 2(2) of the Act, and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning of Section 2(5) of the
Act
3 By discharging Mary Cronn because of her membership in, and activities on
behalf of, the Union , thereby discouraging membership in, and activities on behalf
of, the Union , Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act
4 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act
5 Respondent did not coercively interrogate its employees or engage in surveil-
lance of their union activities in violation of Section 8(a)(1) of the Act
[Recommended Order omitted from publication ]
Park Sherman Company and Teamsters , Chauffeurs, Helpers
and Taxicab Drivers Local Union 327, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America Cases 26-CA-2220, 2253, and 2253-2
December 7, 1966
DECISION AND ORDER
On July 14, 1966, Trial Examiner Sidney J. Barban issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision The Trial Examiner further found that the Respond-
ent had not engaged in certain other unfair labor practices alleged
in the complaint and recommended the dismissal of these allegations
161 NLRB No 140
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision, and a brief in support of said exceptions, and the General
Counsel filed cross-exceptions to said Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
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, cross-exceptions, briefs, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modifications.'
The Trial Examiner found that the Respondent had not unlaw-
fully solicited or assisted its employees in their efforts to withdraw
their Union cards. We disagree.
It appears that some 12 or 13 employees, including James Rogers,
Betty Haynes, and Evelyn Todd, went to the office of the person-
nel manager, Bernard Hart, and told him that they wished to with-
draw from the Union. Hart indicated his approval of their action,
and gave them a form letter for such withdrawal and paper and
envelope. Each employee copied the letter and placed it in the enve-
lope for mailing. The Trial Examiner concluded therefrom that the
employees' withdrawal attempts were their own free action and not
attributable to the Respondent's impermissible conduct. However, the
record here shows not only a background of conduct in violation of
Section 8(a) (1) and (3), as found herein, but also shows specifically
that Hart engaged in unlawful conversations concerning surveillance
with employee Rogers; that Hart, through Supervisor Gladys Clif-
ton, unlawfully sought to restrict employee Haynes, as well as others,
from accepting union handbills; and that Hart unlawfully told
employee Todd, in connection with her intention to withdraw from
the Union, that she would be favored because of her repudiation of
the Union. In these circumstances, we conclude that the employee
withdrawal attempts were caused, at least in part, by the Respond-
i The Respondent contends, inter ai,a, that since there was no proof of monetary loss
sustained by the discriminatee, John Brown, the Trial Examiner erred by including in the
remedial order a provision that Brown be reimbursed for any loss of pay he may have
suffered as a result of the discrimination, with interest thereon. However, we shall, in
accordance with our usual practice, leave the resolution of this issue of possible monetary
loss to the compliance stage of this proceeding.
The Trial Examiner recommended a narrow cease -and-desist order . As the Respondent
not only has engaged in extensive violations of Section 8(a)(1) but also has violated Sec-
tion 8 ( a) (3), we find that in the circumstances a broad order is necessary and proper and
have so modified the order.
PARK SHERMAN CO . 1561
east's unlawful conduct, and that Respondent's assistance to the
employees was part of its scheme to interfere by unlawful means with
the employees' support of the Union. Accordingly, we find that the
Employer's assisting employees to withdraw their union cards vio-
lated Section 8(a) (1) of the Act.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications:. ,
[1. Renumber the present paragraph 1(f) to 1(g), and substi-
tute the following :
[" (g) In any other manner interfering with, restraining, coerc-
ing, or discouraging employees in the exercise of ther rights under
Section 7 of the Act." -
[2. Insert the following as the new paragraph 1(f) :
[" (f) Assisting employees to withdraw their membership from, or
to terminate their adherence to, the Union."
[3. Insert the following as the sixth paragraph of the notice :
[WE WILL NOT assist employees to withdraw from, or to termi-
nate their adherence to, the Union.
[4. Substitute the following for the seventh paragraph of the
notice :
[WE WILL NOT in any other manner interfere with, restrain,
coerce, or discourage employees in their right to join or assist
any union , or bargain through a union of their own choosing,
or engage in concerted activities with respect to terms and condi-
tions of employment , or to refrain from any such activity.]
[The Board dismissed those portions of the complaint as to which
no violations have been found.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard before Trial Examiner Sidney J. Barban, at Murfreesboro,
Tennessee, on February 2 and 3, 1966, upon allegations in the complaint of the
General Counsel issued on December 14, 1965 (based on charges filed on Octo-
ber 14, November 12, 18, 30, and December 14, 1965), as amended at the hear-
ing, that the Respondent had violated Section 8(a)(1) and (3) of the Act by cer-
tain acts of discrimination against employees John Brown and Doyle Wayne Faulk,
and by other acts and conduct hereinafter considered. In its answer, as amended at
the hearing, the Respondent denies the commission of any unfair labor practices.
Upon the entire record in this case, from his observation of the witnesses, and
after due consideration of the oral argument of the General Counsel and the
Respondent, and the brief of the Respondent, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. RESPONDENTS BUSINESS
Respondent, an Illinois corporation, is engaged in the manufacture and sale of
cigarette lighters and related products at Murfreesboro, Tennessee, from which plant
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it shipped in interstate commerce during a recent 12-month period products of a
value in excess of $50,000 Respondent admits and it is found that the Respondent
is engaged in commerce within the meaning of the Act
II LABOR ORGANIZATION
It is admitted and I find that the Charging Party, herein referred to as the Union,
is a labor organization within the meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Alleged instances of interference , restraint, and coercion of employees
1 Respondent 's early opposition to the Union
According to the testimony of Sandra Brown , at the time she was hired, about
the last part of July or the first of August 1965 , Bernard L Hart, Respondent's
personnel and assistant plant manager , told her that the plant had closed down
"up north" and moved to Murfreesboro because of a union and indicated that this
would happen at Murfreesboro if the plant should be unionized at this location
Hart testified that he recalled the interview with Brown and that he did not
"have any occasion to have any conversation with her regarding the reason that
the Company was in Murfreesboro , or the Union activities in general "
I credit Sandra Brown's testimony Other testimony of Hart establishes that
Respondent closed its plant in Illinois and moved to Murfreesboro because of its
experience with two labor organizations There is also undenied testimony that Hart
made a similar comment during an employment interview with another employee
hired about a year previous I am convinced that in his recollection of this and
other employment interviews, Hart's testimony was based more upon his feeling
for the probabilities as to what he had said than upon specific recollection of the
conversations
On October 7, 1965, the Union began passing out handbills in front of the plant,
at the edge of Respondent 's property According to the testimony of employees
Betty E Haynes, Jean Jakes, and Margaret Ryan, Supervisor Gladys Eileen Clifton
came around to them shortly before quitting time that day, and told them that
Personnel Manager Hart had said that the Union men were out front handing out
handbills, and if the employees "favored the company not to take those handbills "
John Brown , who had just returned to the plant from a trip in Respondent's
truck at that time , states that he was told by his supervisor, Foreman James H
Barrett, that Hart had instructed Barrett to tell Brown that "if you wasn 't interested
in the union , don't take any of those handbills "
As the employees were leaving the plant at the end of that day, Hart was seen
by employees standing before a window from which he could observe the union
men in front of the plant handing out handbills Hart's testimony was that he was
standing there talking to the president of the Respondent and observing that the
union representatives did not trespass on Respondent's pioperty
The General Counsel contends that by his instructions to the employees and his
observation of their compliance with those instructions, Hart established the equiva-
lent of a "mock election ," with the employees indicating their choice for or against
the Union ( or the Respondent ) by accepting or rejecting a handbill
Hart testified that he had instructed all of the supervisors to advise the employees
that they were free to accept or reject the handbills Clifton stated that she so
informed the employees , and could not recall saying anything about "favoring the
company at that time " Supervisor Barrett asserted that he had received the same
sort of instructions from Hart and had passed them on to Brown in the same
fashion
In other words, if Hart and the supervisors are to be credited , Hart's efforts,
quickly undertaken upon the appearance of the union organizers at the plant, were
only intended to assure the employees that Respondent was scrupulously neutral
in respect to this organizing activity However, Hart clearly felt that unionization
of the plant was not in Respondent 's best interest , and was opposed to it All of
his activities shown by the record are consistent with that position It strams belief
that he would have been as impartially neutral as his testimony, and that of the
supervisors , makes him out on this occasion Further , it would appear more likely,
if Hart were merely unconcerned whether the employees accepted or refused the
handbills, he would have refrained from giving them any advice or instructions
PARK SHERMAN. CO. 1563
When asked the basis for this concern in the matter, Hart avoided a direct answer,
first stating, "Wouldn't you be. if you were in, my shoes?" and then asserted
generally that he was interested in anything that affected Respondent and the
employees.
On the record as a whole, I am convinced that Hart's activities in this matter,
and those of the supervisors, were designed to discourage the employees from
accepting the handbills, and therefore credit the testimony of the employees as to
what they were told by their supervisors.
I further believe and find that Hart's action in observing the employees from
the window as they passed the place where the handbills were being passed out
was deliberate rather than casual, as some parts of his testimony would indicate.
It is further alleged that about this time or shortly thereafter, Hart also engaged
in interrogation of Sandra Brown and employee James Rogers concerning their
union activities or adherence. Sandra Brown testified that, on at least one occasion,
Hart questioned her as to the feelings of her sister and herself toward the Union,
stating that he knew that her brother was "for the Union." She stated that Hart
also talked to her about the Union on other occasions, although she was not certain
as to the contents of those conversations.
James Rogers testified that on one occasion, Hart said to him, "I heard that the
Union boys been talking to you," and on another occasion, "I hear you went to the
Union meeting last night." Rogers stated that on each occasion, all he said was,
"Yes."
I credit the testimony of Sandra Brown and James Rogers set forth above.
Although Brown became somewhat confused on cross-examination, and at one
point became nervously distraught on the witness stand, her demeanor impressed
me as that of one sincerely attempting to tell the truth. I am convinced that Hart
interrogated her as she testified. Hart, in fact, recalls the conversations with Brown
much as she testified, except that he states they occurred "only when she brought
it up," and involved no questioning of Sandra Brown on his part. Hart's testimony
does not specifically deny the conversations stated by Rogers and his recollection
of certain conversations he had with Rogers about the Union are not necessarily
inconsistent with his having other conversations such as those related by Rogers.
Based on these facts, and the entire record, I find that by the activities of Hart
with respect to Sandra Brown and James Rogers set forth above, and by the activi-
ties of Hart and other supervisors in warning the employees that by accepting
union leaflets they would be opposing Respondent, together with Hart's surveillance
of the employees in regard to this matter, Respondent interfered with, restrained,
and coerced its employees in the exercise of their rights under the Act, and thereby
violated Section 8(a)(1) of the Act.
2. Hart's speeches
About the middle of October, Hart gave a speech to three different groups of
employees, a part of which, in each case, being devoted to the Union. The General
Counsel claims that in this speech, Hart threatened the employees with closure
of the plant if they selected the Union to represent them.
Four employees testified concerning this speech, Betty E. Haynes, Evelyn Todd,
Jean Jakes, and Margaret Ryan. Haynes' account, which is more detailed than some
of the others, adequately sets forth the account of the employees with respect to
Hart's remarks. She testified:
The first thing he said, he called us there to discuss the profit-sharing plan,
and talked about that for several minutes, and, then he said, "The second rea-
son I have called you all here is because we have had visitors, the Teamsters
Local 327." He said, "Now, we didn't invite this trouble, but someone did,"
and talked about how they were competing with Japanese labor and things
like that . How we were competing with Japanese labor, the price of
lighters and things like that, and said, "The plant can close for economical
reasons, and this, I think, is an economical reason," and he talked about John
Doe going around from one department to the' other getting Union cards
signed. He said we wouldn't be allowed to do that; that we could do that
during break, on our lunch,, or before and after the buzzer. He said, "If you.
don't think you'll get fired for it, just try it." He said, "I told each one of you
when I hired you that the door to' my office was always open, if you had any
problems or anything to discuss you were welcome any time to come to me."
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hart's testimony as to what he said with regard to the Union was that, as a
result of a question from employee John Black, he advised the employees that
Respondent had moved to Tennessee because it could "no longer operate in Illinois
economically . . . That we had two labor unions up in Springfield, Illinois, and
that our wages had got to the point where we could not compete with the Japanese
in the cigarette lighter industry." Hart testified that further, as part of his answer to
another employee's question, he said, "that if they got a Union in the Park Sherman
Company . . . I didn't know what the Company would do, because I am not a
stockholder of the Company. I don't have any money in Park Sherman. I am just
an employee, the same as the rest of those people, but I did feel that if it became
an economical issue to the point that we could not make a fair share of profit, or
if Mr. Sherman could not make a fair share of profit for money invested, that
probably the plant would close."
Hart further testified that during the talks given to the employees, he told them
that if they wanted to discuss union matters, this should be done before work, dur-
ing break periods, their lunch hour, or after work, but not to do this during working
hours. He also stated' that during these speeches, he advised the employees of the
policy of Respondent "limiting the talking and moving around the plant."
The two employees who asked questions of Hart did not attend the speech given
to the group which included Haynes, Todd, Jakes, and Ryan. The General Counsel,
therefore, argues that Hart's testimony should not be considered to relate to that
latter speech at all, and therefore the testimony of the employees stands undenied.
I disagree. With respect to the alleged threat to close the plant, which is the only
part of the speech asserted as an independent violation of the Act, the various
versions are not necessarily inconsistent. Hart's version, which is more detailed,
is therefore credited on this point.
After careful consideration of the evidence, I conclude that the Respondent did
not by this speech, threaten the employees that the Respondent would close the
plant in reprisal if the employees selected the Union to represent them. The right
to make a free choice sometimes requires that a choice be made among risks as
well as benefits. The fact that a party having a legitimate interest in the choice, in
good faith, makes a reasoned, moderate statement of the bona fide risks involved,
in order to influence the choice, should not be held to be an interference with the
right to choose.
About this same period of time, it was asserted that Hart had two other con-
versations with Sandra Brown which allegedly concerned the Union. In one of
these, Hart asked Sandra Brown what Jean Jakes had said to her in the ladies'
restroom, and in the other, Hart said to Sandra Brown that since everyone started
wearing union buttons he could tell who was for the Union and who was not.
I find no violation of the Act in these two instances. There was no sufficient
showing that the query concerning Jakes was union oriented, although that might
be suspected from the timing. With respect to the comment concerning the buttons,
there would appear to be nothing improper in Respondent commenting on a fact
that the employees clearly wanted to be known.
3. Activities of Foreman Gordon
The General Counsel adduced testimony concerning one long conversation
between Foreman Howard Gordon, an admitted supervisor, and employee Mar-
garet Ryan, and two long conversations between Gordon and employee John
Brown, which it is contended included unlawful threats and interrogation of the
employees involved.
Gordon's conversation with Ryan occurred on October 29, 1965. There are
some conflicts between the two versions of this conversation, and the manner in
which it was initiated. However, there does not seem to be any dispute that this
conversation concerned Ryan's reasons for her adherence to the Union, as evi-
denced by her wearing a union button. It is further clear that Gordon specifically
queried Ryan as to those reasons and sought to convince her that Respondent had
treated her well in the past in respect to her job. It is moreover undenied that,
after Ryan indicated that she did not feel that Respondent had previously favored
her by keeping her employed, Gordon then advised her that he had in the past
"fired a hell of a lot of people for belonging to the union," to which Ryan retorted
that she was certain that Gordon had a good reason for the discharge in each case.
PARK SHERMAN CO 1565
About this same time , Gordon had a similar conversation with John Brown
According to Brown, the following occurred
Well, he came up to me and says, "I hear you 're a big union organizer" I
said , "Yes, sir " He said, "What seems to be wrong " I says , "Well, we
haven't nothing out here " I said, "We ain't got no seniority rights, no layoff
rights You can lay off who you want to" He said, "Well, I don't know
nothing about that " He said , "I'm not in personnel " I said , "Well don't you
think a union 's a pretty good thing " He said , "Yes, it ain't all bad " I said,
"Well, it's going to come out here eventually, ain't it" He said, "Yes, he
says , "It's going to come out here, but I don't think it's ever going to be the
Teamsters ," and we went on and talked awhile , about 30 minutes , I guess, and
he said something else, and I said, "Well, do you think it's right about them
lumping on me about that telephone the other day " He says, "I don't know "
He says, "You don't expect us to stand out here and do nothing about it, do
you " I said , "No, I guess " He said , "Well, I'll tell you, from now on its
going to be dog eat dog out there ," and he went on to say a few more words
and left 1
Gordon's version of this conversation was that Brown initiated that part of the
talk that concerned the Union, which involved only a discussion of one union
handbill Gordon stated, as to whether there was anything else, "that was about it "
I credit Brown's testimony as to this conversation It has the convincing ring of
detailed recollection and gives no evidence of bias or distortion Gordon 's version
of what was said was conclusionary and brief , and, on the whole, is not neces-
sarily inconsistent with that of Brown
Not long thereafter, on a Saturday, Gordon had another conversation with
John Brown outside the plant Brown had been inside the plant on a personal
matter Gordon asked Brown what he was doing there that day, and after hearing
Brown's explanation, advised him that he was not supposed to be on plant property
when he was not working When Brown said that he had been out at the plant on
other similar occasions and nothing had been said to him, Gordon said, according
to Brown, "Well , you ain't supposed to be out here I told you it was going to be
a dog eat dog a long time ago "
Gordon's version of this conversation, again , as far as it went , is not inconsist-
ent with that of Brown Nor did Gordon deny that he told Brown, in both of these
conversations , that from that point on, "it was going to be dog eat dog," an expres-
sion clearly tied to Brown's union activities I credit Brown's testimony in respect
to this second conversation also
There was considerable testimony adduced as to whether Respondent had a
preexisting policy against visits to plant property when the employee was not
scheduled to work Assuming the existence of such a policy , the record is con-
vincing that it was not well publicized , and the employees might reasonably
assume, from past instances of apparent tolerance of off-duty visits, that there
was no strict prohibition of this sort of conduct In any event , it is evident from
Gordon's reiterated warning that both the warning and the manner in which it
was given were occasioned by Brown's union adherence, and not by concern over
the alleged breach of Respondent 's policy
Based upon the findings made, and in the context of this record as a whole, I
find that, by the activities of Foreman Gordon set forth above, Respondent inter-
fered with , restrained , and coerced its employees in the exercises of their rights
under Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act
4 Activities in respect to employee withdrawal of union cards
General Counsel further alleges that Respondent violated the Act by unlawfully
soliciting and assisting employee withdrawals from the Union, in the course of
which, it is asserted , Personnel Manager Hart made a promise of benefit to an
employee on the basis of her withdrawal from the Union
1 Brown had shortly before been reprimanded for using the telephone in the cafeteria
during working hours, when he was observed by Respondent 's president , Sherman and
another supervisor He had not secured permission to use the telephone Brown testified
he was using the telephone during working hours because everyone else did
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first witness on this issue was employee James Rogers, who stated that, on
an undetermined date in October, he went to Personnel Manager Hart's office "To
get my Union card back." According to Rogers , after entering the office, "I said,
`I guess you know why I'm here ,' and he said he thought he did. I told him why
I wanted to get my card . . . I said I wanted to get my card back . . . . And
he said , 'I can't make , you do this. I can't tell you to do this,' but he said he
thought it was best, and he gave me a letter to write to get my card back." The
record as a whole makes it clear that what Hart gave Rogers was the form of a
letter to the Union withdrawing any previous written authorization previously
executed by Rogers. Hart gave Rogers paper and a pencil or pen for the purpose
of preparing and executing the letter. After it was completed, Rogers took the
letter to the post office , where he obtained a stamp and mailed it.
Two other employees , Betty Haynes and Evelyn Todd, acted in concert in
approaching Hart on this matter. Both of these employees had heard of other
employees who had gone to Hart' s office and received assistance "to get their
cards back." Both had discussed doing this, and on November 22, 1965, Haynes
called Hart, told him that both she and Todd were disgusted with the Union and
"wanted out of it," and desired to talk with him. Hart advised Haynes that he was
not then available, but that she could see him at the bowling lanes that night.
Haynes and Todd met Hart in the cafeteria at the bowling lanes that evening,
at which time Foreman Gordon joined the group . From the testimony of Haynes,
Todd, and Hart (Gordon did- not testify as to this meeting ), the following is
found to have occurred : The girls did most of the talking. They emphasized how
disgusted they, were with the Union, and that they considered their involvement
with the Union to have been a mistake , which they now regretted. Gordon advised
Haynes not to feel too upset about her mistake, that he had made mistakes too.
Gordon also related his experiences with the Union in Illinois . As a result of the
comments by the girls, indicating their desire to get their cards back, Hart advised
them that if that was their desire, they could come to his office where he would
supply them with the same assistance which he had given others, in the 'form of a
letter which they could write to the Union.
On the following afternoon,. after work, Haynes and Todd went to Hart's office.
According to Haynes' testimony, which I believe fairly reflects the conversation with
respect to the withdrawal letter, Hart said to them, "Well, if you girls want to write
one of those letters . . . I have a letter here. You can look at and read it and if
you want to write one you can." Hart furnished them with paper, pencils, and en-
velopes. The two girls copied the letter, took the copies with them when they left,
and never mailed them.
Hart testified that he gave similar assistance to some 12 or 13 employees in addi-
tion to Haynes and Todd . He states that in each case he told the employees that
sending the letter had to be their own free choice , that if they wanted he would
show them the form to use, which they might write in his office or at home. How-
ever, the employees were to mail their own letters. In each case the employee
wrote the letter in Hart's office, with paper and pencil furnished by Hart.
At the hearing, the General Counsel argued that this case is controlled by the
Board's decision in Reilly Tar and Chemical Corporation, 151 NLRB 1503, enfd.
as amended 352 F.2d 913 (C.A. 7, 1965). "The,only difference being that in this
case the employer did not supply the stamps ." It was also argued that Hart's state-
ment to the girls at the bowling lanes that if they wanted to withdraw their cards
from the Union, they should come to his office for the form, constituted illegal
solicitation to withdraw from the Union. -
I find the resolution of this issue more difficult, and the issue itself more funda-
mental , than General Counsel's cursory treatment of it would indicate. At the
outset, contrary to the General Counsel, I conclude and find that there is no sub-
stantial evidence on the record as a whole that the Respondent solicited employees
to withdraw their cards. The evidence, in. fact, preponderates in support of the
contrary conclusion : that the employees sought out Hart for assistance in
withdrawing.
However, it is well settled that even where the employee takes the immediate
initiative, the employer may, in appropriate cases, violate the Act by assisting the
employees in withdrawal of their previous adherence to the Union. See, e.g.,
Southwestern of Dallas Optical Company, et al., 153 NLRB 33; Winn-Dixie Stores,
Inc., 128 NLRB 574, 580, 588. Cf. Clifton Precision Products, etc., 156 NLRB 555.
But more is required than a showing that the Respondent merely furnished the
forms , and the paper and pencil with which it was copied , as the General Counsel
PARK SHERMAN CO. 1567
seems to argue . See, e.g., Martin Theatres of Georgia, Inc., d/b/a WTVC, 126
NLRB 1054; Perkins Machine Company, 141 NLRB 697. The pertinent inquiry
here, as Trial Examiner Hunt pointed out in both the Reilly Tar and the Martin
Theatres cases, is first, whether, on the record as a whole , the act of the employees
in requesting assistance was their own free choice, or was induced or caused by
unfair labor practices or other impermissible pressures of the Respondent, see
Reilly Tar and Chemical Corporation, supra, 1510, and lastly, whether the
assistance given exceeded the bounds of ministerial aid limited to helping the
employee effectuate his own free choice. Cf. Martin Theatres, supra; Perkins
Machine, supra.
On the basis of the findings made and the entire record in this case, including
the matters hereinafter discussed , I cannot find that the act of the employees in
this matter in seeking assistance was not the result of their own free choice, or
was attributable to impermissible conduct of the Respondent . Nor was the assist-
ance given , in the circumstances of this case , unlawful .2 It will therefore be recom-
mended that this allegation of the complaint be dismissed.
5. Alleged promise of benefit
After Haynes and Todd had copied their letters of withdrawal in Hart's office,
it appears there was considerable additional conversation among them in regard to
the Union. According to Haynes, Hart recounted some of his personal experiences
with the union in Illinois, stating, however, that he could not "say the union is all
bad." Haynes made reference to her attendance at union meetings, to which she
states that Hart said that this was not held against her, reminding her that Hart
had said in his speech to the employees that they should go to the union meetings
if they did not understand the Union. Haynes states that Hart further said that he
could not promise the girls anything other than that they would "be treated like
everyone else." Haynes replied that was all she asked.
At some point during this conversation , there was mention of a transfer to another
department which Todd had requested, and had not received, but which had been
given to another employee, Frances Lester. Todd states that this came up when she
said to Hart that he knew why she had become involved with the Union, referring
to the fact that Hart had not given her the requested transfer. Todd asserts that
Hart replied, "Had I known where you stood, you would have went before."
Haynes testified that in the course of the conversation between Todd and Hart
concerning the failure to give Todd a transfer, Hart said, "Had I known where you
stood, you would have went over there before Frances."
Hart's testimony that, in answer to Todd's request for a transfer, he told Todd
that he would transfer her if he could, and nothing else.
I credit the testimony of Haynes and Todd as to the conversation with Hart on
this occasion. The conference was solely concerned with the Union and the feelings
of Hart, Haynes, and Todd toward it, at a time when the two employees had so
forcibly advised Hart of their disillusionment with the Union and their regret at
having been involved in it. Unquestionably, Hart approved of their position, as he
had Rogers' similar action. It is unlikely that the matter of the transfer would come
up solely by chance, and completely divorced from the newly disclosed antiunion
position of the employees. But it is quite credible that Hart indicated that Todd's
action would favorably dispose him toward her. I therefore find that Hart advised
Todd that he would favor her because of her repudiation of the Union, and by this
action Respondent violated Section 8(a)(1) of the Act.
B. Alleged acts of discrimination
1. Restrictions placed on John Brown
From the outset of the union organizational drive it appears that John Brown
became marked as an adherent of the Union. He pointedly accepted the union liter-
ature passed out in front of the plant on October 7, and discussed it with employees
in the plant the next day. Shortly thereafter, as has been noted, Personnel Manager
Hart discussed Brown's known union proclivity with Brown 's sister . At some time
a I have considered that Hart told James Rogers that Hart approved of what Rogers
was doing. However, a quite similar statement by the employer in Martin Theatres, supra,
was not held by the Board to be improper.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during this period , employee Lane reported to Hart that Brown had attempted to
persuade Lane that he would make more money if the Union were the representa-
tive of the employees . Also, as we have seen, Foreman Gordon addressed Brown as
the "big union organizer," and advised him that from that point on, the relationship
would be one of "dog eat dog."
Prior to October, 7, and- since the time that the Respondent purchased a delivery
truck in July, Brown had regularly been assigned to drive this truck. After Octo-
ber 7 , Brown was no longer assigned to drive the truck, but was confined to duties
in the painting department , which was and is the department to which Brown has
been nominally assigned . Brown 's rate of pay when driving the truck was the same
as that he received when working in the painting department. It is the General
Counsel 's contention that Respondent discriminatorily ceased assigning Brown to
drive the delivery truck, in violation of the Act, because of Brown 's union activities.
The delivery truck in question was purchased by Respondent in July 1965, for
the purpose of picking up plating work from firms in the area to be processed by
Respondent's plating department and delivering the work when it was finished.
Brown , who possessed the requisite chauffeur 's license, was designated to drive the
truck to the plant when it was first purchased, and thereafter drove the truck for
Respondent about 50 percent of the time. The truck was sent out about twice a
week, at times designated by the plating department foreman , John Blassingame.
When Brown was not assigned to drive the truck, it was driven by an employee
from the plating department , either Elmer Davenport or Charles Huffman, or by
employee Vance of the maintenance department, who had formerly worked in the
plating department.
It is undisputed that in October 1965, Respondent ceased assigning Brown to his
customary duties of driving the delivery truck, and employee Davenport was
"broken loose" from his duties in the plating department to drive the delivery truck
when required . Respondent 's asserted reason for making the change, however, is
clearly questionable.
Foreman Blassingame , who gave the principal testimony on this point , on direct
examination asserted only that he made the change in assignments , and that he did
so because he wanted someone on the truck who was experienced in the work of
the plating department , and Brown was not so experienced so far as he knew. How-
ever , Blassingame 's testimony on cross-examination was something else again. The
following excerpts from direct examination illustrate:
Q. (Mr. White) . . sometime in October of 1965 was there any change in
the people who drove the truck?
A. Yes.
Q. What change was made?
A. I put Elmer Davenport on the truck regular.
Q. I beg your pardon?
A. I put Elmer Davenport, one of my men, on the truck most of the time.
Q. Why?
A. Because I kept having more questions coming up as to quality and as to
special instructions. I was spending quite a bit on phone calls checking back
after work we would get into the plant as to what would be done with it.
Q. Why was this necessary?
A. Because I needed someone who could relay the instructions to me, an
experienced plater.
Q. Who had been driving the truck on the days when you received these
questions?
A. John Brown.
On cross-examination:
Q. (Mr. Higgins) Who made the decision to take John Brown off the truck?
A. Mr. Sherman , I believe.
Q. Then John Brown 's experience, or the experience of Elmer Davenport
really had nothing to do with Mr. Brown being taken off the truck?
A.-No, because we had , been using James Vance and Elmer Davenport, both,
when they weren't busy.
Q. Let me ask you this, Mr. Blassingame: You testified here that it is impor-
tant that you have a man with plating experience on that truck . Is that correct?
A. Yes.
PARK SHERMAN CO. 1569
Q. And, for that reason you stopped assigning Brown to that truck . Is that
right?
A. No, I didn't stop assigning Brown to the truck . I used Brown when my
man was busy, or when James Vance was busy and then when John Brown
could no longer drive the truck, then I put one of my men on the truck
regularly.
Q. Then, all of this business about the plating experience of Mr. Davenport
is unimportant?
A. No, it is not unimportant.
Q. Then it was you who decided that John Brown was not to drive?
A. No.
Q. Who decided?
A. Mr. Sherman decided that he wasn't going to drive the truck.
According to the testimony of Foreman Gordon, received over the General Coun-
sel's objection , President Sherman , in October , told Gordon that Sherman did not
want Brown driving the truck any longer because he had just learned that in August
Brown had been picked up on a drunken driving charge and that he did not want
Brown driving the truck, stating "We've got insurance on the truck and it is a
responsibility we don't need ." Gordon thereupon gave instructions to Blassingame
that Brown was not to be assigned to the truck further, after which Blassingame
did not further use Brown on the truck .3
It is admitted that both Gordon and Hart were aware in August that Brown's
chauffeur's license had been suspended for 8 days. Hart, indeed, had offered to
assist Brown at the time in getting his license back so that he could continue to
drive the truck and Gordon drove Brown down to pick up his license at the end of
the period of suspension. That same day Brown took the delivery truck out and
continued to drive it until October, when Sherman countermanded his further
assignment.
About this same time-fixed by Hart as occurring during the last 2 weeks in
October and by Brown to have occurred on the first day he wore his union button-
Hart also gave orders that Brown was no longer to be permitted to operate a tow
motor around the plant, an operation referred to as "trucking ." Prior to this time,
it appears that it was a regular part of Brown's job to truck needed materials to the
painting department. In addition to Brown, Respondent has three other employees
who performed the function of transporting materials and supplies where needed in
the plant. However, since the time that Hart instructed Brown's foreman to take
over these functions for the painting department , Brown has been restricted to the
paint department and has been relieved of his "trucking" functions.
In its brief, Respondent suggests that the restriction of Brown to the department
was appropriate "discipline" for "unnecessary talking to employees in other depart-
ments during working hours," stating, "If Brown had spent time during working
hours talking with . employees in other departments and disturbing their work,
Respondent would be entirely within its right to keep him on the job during the
time he was on the timeclock , even though he were the most active union adherent
in the plant."
The problem that I have with this contention is that Hart nowhere asserted that
Brown was, in fact, relieved of his "trucking" functions because of his alleged talk-
ing, and Hart's testimony as a whole indicates the contrary. On both direct and
cross-examination , Hart emphasized that the intention was to assist production in
the rush season by having Foreman Barrett "make sure to see that' all the supplies
were there so these boys didn't have to run out and do any trucking." On direct
examination, after a further suggestive question by counsel, Hart did testify that
Brown "got to the point that he was doing a lot, of talking during working hours,"
citing an instance, previously noted, involving' Brown, employee Doyle Wayne
Faulk, and employee Howard Lane in which Brown sought to convince Lane he
8 Sherman attended ' the hearing ,on the first day but did not testify . It was stated that
he was out of town on the second day but no request for time to permit him to testify was
made. Gordon ' s testimony as to Sherman 's alleged reason for ordering Brown taken off the
truck was obviously hearsay for that purpose , but was admissible to show the basis upon
which Gordon and Blassingame assertedly acted
264-188-67-vol. 161-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would make more money if represented by the Union . However, on cross-
examination , Hart specifically denied that the decision to restrict Brown was "based
upon the fact that Mr. Brown had been talking to certain employees in the plant."
In the only instance cited in which Brown is asserted to have engaged in such
activity , it appears that Brown sought to persuade employee Lane that he would
receive better pay if he were represented by the Union, showing him a copy of a
check allegedly earned by an employee at another plant. Brown gave Lane the copy
of the check at his request , and Lane then carried it to Hart, who had it photo-
stated. However, Hart denied that this had anything to do with the restriction of
Brown. Hart further agreed that he did not even reprimand Brown for this incident,
stating that the only time that he had spoken to Brown about talking to employees
in the plant was an occasion when Brown overstayed a leave period.
Foreman Barrett testified only that Hart told him that Brown was running
around all over the plant and Hart wanted him to stay in the department and work.
Brown testified that Barrett made such a statement to him.
There is no question in my mind that Respondent was engaged in a deliberate
attempt to isolate Brown in retaliation for his union activities . This is well illustrated
by Gordon 's warning Brown off Respondent 's property with the admonition , relating
to Brown's union activities , that the situation was one of "dog eat dog."
Only hearsay testimony was given as to the actual reason for restricting Brown
from his normal delivery truckdriving duties, and , on the basis of this record, that
asserted reason is not convincing . The reason for the change advanced by Foreman
Blassingame is shown to be only a makeweight advanced to justify the restriction
of Brown and not the real reason for the change at all. On the other hand, Respond-
ent's hostility to the Union and its reaction against Brown as the leader of the
Union in the plant , together with the immediacy of his restriction after the advent
of the Union , an abrupt change from prior practice, are strongly persuasive that
the change was made in reprisal for Brown 's union activity . As has been noted,
there is no probative credible evidence to the contrary.
Both in timing and context the restriction of Brown from "trucking" in the plant,
as well as truck driving outside the plant, is part of the same manifest pattern.
Although it was Hart's testimony that Brown 's restriction from in-plant trucking
was solely related to the needs of the rush season, it was unaccountably delayed
until the rush season was almost over ,4 and, though the rush season is clearly com-
pleted, Brown still continues to be restricted from his normal duties of "trucking."
It may be further noted that the adding of the additional trucking duties upon Fore-
man Barrett would necessarily detract from his production duties in the painting
department , which the record shows to be of a more highly skilled character than
that of Brown . Since it was denied by Hart that the change was made because of
Brown's talking to employees in the plant , it is not necessary to further consider that
contention.
On the basis of the above, and the record as a whole, I am convinced and find
that the restriction of John Brown from driving the Respondent's delivery truck
and from "trucking" in the plant were in reprisal for Brown 's union activity, and
tended to and did discourage membership in the Union, and Respondent thereby
clearly violated Section 8 ( a)(1) of the Act . See N.L.R.B. V . Fansteel Metallurgical
Corp., 306 U .S. 240, 215-252 ; F. W. Woolworth Co. v. N.L.R.B., 121 F.2d 658,
660 (C .A. 2, 1941).
The complaint also alleges that by these acts Respondent also violated Section
8(a)(3) of the Act. Respondent contends that in the absence of some showing of
detriment to Brown there is not a sufficient showing of discrimination within the
meaning of that Section , which makes it an unfair labor practice for an employer
"by discrimination in regard to . . . any term or condition of employment to .. .
discourage membership in a labor organization."
I am of the opinion , however, that Respondent's deliberate restriction of Brown
from his normal duties because of his adherence to the Union manifestly consti-
tuted the sort of activity which the Act was designed to prevent , and did , in fact,
discriminate against Brown in respect to terms and conditions of his employment.
It is further clear that this action was intended to discourage membership in and
"ITart places Brown ' s restriction from "trucking" as possibly occurring as late as
November 1. However, Respondent also contends that within very little time thereafter
there was so little work in the painting department that it was forced to lay off employee
Faulk.
PARK SHERMAN CO. 1571
adherence to the Union , and would have a natural tendency to do so. It is there-
fore found that by these activities of Respondent restricting Brown from his normal
duties, Respondent also violated Section 8 (a)(3) of the Act.
During his closing argument , General Counsel contended for the first time that
the rule against union activities on working time promulgated by Hart in his
speeches to the employees was instituted for a discriminatory and not a valid pur-
pose, and , therefore , under the holding of the Board in The Wm. H. Block Com-
pany , 150• NLRB 341, Respondent thereby violated the Act. There is no evidence
that the rule was promulgated for other than valid reasons , or that it was applied
discriminatorily . In any event , it is clear that this issue was not alleged or litigated,
and I reject the General Counsel 's contention.
2. The layoff of Doyle Wayne Faulk
Faulk was employed by Respondent on August 16, 1965, as the "fourth painter"
in its painting department , the other three being Working Foreman Gordon, Work-
ing Supervisor Barrett, and employee John Brown . It appears that about this time,
Gordon was detached from the painting department to concentrate on other duties,
including plant maintenance . Barrett then took over supervision of the paint shop.
There is some dispute as to whether at the time Faulk was hired he was told by
Personnel Manager Hart that he would be a probationary employee for the first
90 days. However, the point seems immaterial , since it is not claimed that Faulk
in any way failed to satisfy the Respondent while he was employed , or that his
alleged probationary status affected the decision to lay him off . There is no con-
tention that Faulk was told at the time he was hired that his employment would
be temporary , or was only for Respondent's peak period production , subject to
layoff thereafter.
Faulk signed a card for the Union in October , but is not shown to have engaged
in any other union activity , except that he states he talked to other employees
about the matter in the paint department . Respondent contends that it was unaware
of any union activity on Faulk's part, and, in fact , Hart asserted that he did ' not
even see Faulk wear a union button in the plant as some of the other employees
did. The facts in the record are clearly insufficient to support the contention that
Respondent knew of Faulk's adherence to the Union.
It may very well be that, since Brown and Faulk were the only two rank-and-file
.employees in the department (other than a girl who was not a painter ), and the
two worked closely together , after Brown 's restriction to the paint shop, the
Respondent suspected that Faulk favored the Union , as was the case. Indeed, Hart
specifically identified Faulk as being present on the occasion that Brown tried to
persuade employee Lane that he would be better off if represented by the Union,
.although Hart asserted that when Lane came in to tell him about the incident,
Lane did not mention Faulk as being involved in the conversation . However, in my
view of the case , it is unnecessary to resolve this issue.
On November 8, 1965, Hart gave Foreman Barrett orders to lay Faulk off. As
stated by Faulk , he was working with Brown on that day, when Foreman Barrett
came to him and stated that, "I hate to tell you this, but Mr. Hart said you had to
be laid off ," and further that "he hoped that I didn 't feel hard towards him about
it, and I told him that I didn't . He said I 'd done good work and he 'd rather have
me to work in the paint department as anybody."
The next day, Faulk returned to the plant to get his separation papers, and spoke
,to Hart about his layoff. In response to Faulk's question, Hart denied that the
-layoff was occasioned by Faulk's signing a union card, and advised Faulk that the
layoff was due to the fact that Respondent did not have enough work for Faulk
to do. Hart further told Faulk that it was likely that he would be . called back
around the first of the year .5 When Faulk stated that this was a "bad time" for
him to be out of work , Hart suggested the possibility of Faulk getting employment
at another plant, and, according to Hart's testimony, he told Faulk that he would
attempt to assist Faulk in obtaining such a job.
Respondent's is a seasonal business , with the period from October to December
being the busiest part of the season. However, according to Manager Hart, this is
' Hart stated that from October 7, to the time of the hearing , Respondent laid off 26
employees , and that all of these with the exception of Faulk and 2 others had been
-"recalled" Respondent offered Faulk a job in January 1966 , in a position different from
- that he had previously held and on a different shift Faulk did not accept the offer.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not necessarily true of all Respondent's departments. Thus, Hart stated that the
painting department, in particular, was unique,6 its production fluctuating from
week to week, as well as from month to month, depending upon the type of pro-
duction then being scheduled in the plant. At the time of Faulk's layoff, Hart
stated that the busiest departments in the plant were two assembly departments.
He estimated that only about 25 percent of the items processed by these depart-
ments would thereafter require painting in the painting department.
Manager Hart asserted that at the time Faulk was laid off there was not suffi-
cient work to keep both Faulk and Brown busy in the paint shop, and if he had not
let Faulk go at the time he would have had to let Brown go also. After the layoff
of Faulk, Hart stated that the work load in the paint department was "average,"
but, even so, Brown was not kept busy in the painting department full time, but
was frequently turned over to Foreman Gordon to do maintenance work.
It would appear, however, that even before the advent of the Union, Respondent
normally used Brown outside the painting department, when work was light in that
department. Thus, Foreman Barrett stated that during the time that Brown was
still driving the delivery truck (which was prior to the commencement of union
activities), when Brown was not engaged in driving the truck, and there was no
work for him in the paint shop, "he worked for Mr. Gordon. He painted out front
where they parked, or he watered grass, or just anything." Hart, also, testified that
when Brown was not driving the truck and there was no need for him in the paint
department, "he might be put on a job in the press room, or maintenance for a day
or two until there was enough work to keep him busy in the paint shop." Brown's
testimony was that he was usually out in the plant a good deal and did not spend
a lot of time in the paint shop.
The record also shows that at the time of Faulk's layoff, which occurred on
Monday, November 8, the beginning of Respondent's workweek, there were either
2,000 or 3,000 items waiting to be painted, representing about a week's work.
Foreman Barrett's testimony also indicates that, although there had been a decrease
in the paint shop workload since the peak in October, there was no less work in
the department in November than there had been in August.7 Hart's testimony,
previously noted, shows that after November 9, the workload in the painting
department continued at a normal average level.
No new employees have been hired to work in the paint shop, nor does it appear
that any other employee has done the work of that department.
On the basis of these facts, and after thorough consideration of the entire record,
I conclude that the evidence does not support the allegations of the complaint that
the Respondent laid off and failed to recall Faulk because of his union membership
or activities.
Faulk's activities on behalf of the Union were, at best, minimal, and the evidence
suggesting Respondent's knowledge of those activities is tenuous. Moreover, even
if Respondent did suspect that Faulk was favorably disposed toward the Union,
Respondent was obviously justified in laying off Faulk at the time it ascertained
that there was not enough work in the department for three employees to do. Nor
can it be said, on the basis of this record, that Faulk's layoff was premature, as
General Counsel urges, since there was less than a week's work for the three
painters at the time of the layoff, and Respondent clearly was able to take care
of the requirements of the department without abnormal overtime, thereafter, using
only Barrett and Brown.
In fact, the reason for the layoff most specifically argued to me by the General
Counsel was that Respondent laid off Faulk " in an attempt to scare Brown." How-
ever, on this record, there is not sufficient proof from which the inference might
be drawn.
For the reasons stated it will be recommended that the allegations of the com-
plaint that the Respondent unlawfully discriminated against Doyle Wayne Faulk
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES' UPON COMMERCE
The activities of the Respondent set forth in section III, above, found therein
to constitute unfair labor practices , occurring in connection with the operations of
6 At page 137, line 7, the word "plating" In the question of counsel is obviously a
typographical error. As clearly shown by Hart's answer following, the reference is to the
"painting" department
At a previous place in his testimony, Barrett also testified to the opposite effect.
PARK SHERMAN CO. 1573
the Respondent as set forth in section I, above, have a close, intimate , and sub-
stantial relation to trade , traffic , and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that the Respondent 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 John Brown the position he previ-
ously held and the work to which he was assigned on the same basis as existed
prior to the Respondent's discrimination against him as found herein, and make
him whole for any loss he may have suffered as a result of such discrimination.
Interest on any monetary benefit lost as a result of Respondent's discrimination
against Brown shall be computed in the manner set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act, which unfair labor
practices affect commerce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent did not violate the Act by laying off Doyle Wayne Faulk or
by failing to recall him to the position he had formerly held with the Respondent.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in this case, I recommend that Respondent Park Sherman Com-
pany, Murfreesboro, Tennessee, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or in any other labor organization
by discriminating against employees in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(b) Warning or threatening employees that they may suffer discharge or other
reprisals if they join or support the Union or any other labor organization. .
(c) Interrogating its employees about their union activities or the union activi-
ties of others so as to interfere with the right of its employees to engage in such
activities.
(d) Engaging in or creating the impression of surveillance of the union activities
of its employees.
(e) Promising or granting employee benefits in order to discourage member-
ship in or activities on behalf of the Union or any other labor organization.
(f) In any like or related manner interfering with, restraining, coercing, or dis-
couraging employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which will effectuate the purposes of
the Act:
(a) Offer to John Brown the position he previously held and the work to which
he was assigned on the same basis as existed prior to Respondent's discrimination
against him and make him whole for any loss he may have suffered as a result of
such discrimination, in accordance with the remedy set forth hereinabove.
(b) Post at its plant at Murfreesboro, Tennessee, copies of the attached notice
marked "Appendix." 8 Copies of the said notice, to be furnished by the Regional
Director for the Region 26, after being duly signed by an authorized representative
8In the event that this Recommended 'Order is adopted by the Board, the words "a
Decision and Order'.' shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order Is enforced by
a decree of a United States Court of Appeals, the notice will be further amended by the
substitution of the words "a Decree of the United States Court of Appeals Enforcing an
Order" for the words "a Decision and Order."
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent , shall be posted immediately upon receipt thereof , and be main-
tained by it for' a period of 60 consecutive days thereafter. Reasonable steps shall
be taken by - Respondent to insure that such notice is not altered , defaced, or covered
by any other material.
(c) Notify the Regional Director for the Region 26, in writing, within 20 days
from the receipt of this Decision, what steps it has taken to comply herewith.9
I further recommend that the allegations of the complaint that the Respondent
has discriminated against Doyle Wayne Faulk in violation of the Act shall be
dismissed.
'In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read as follows "Notify the Regional Director for Region 213, in
writing, within 10 days of the date of this Order, what steps it has taken to comply
herewith."
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
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Teamsters , Chauffeurs , Helpers
and Taxicab Drivers Local Union 327, or any other union, by discriminating
against our employees in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT warn or threaten employees that they may suffer discharge
or other reprisals if they join or support the above -named union or any other
labor organization.
WE WILL NOT interrogate our employees about their union activities or the
union activities of others so as to interfere with the right of our employees
to engage in such activities.
WE WILL NOT promise or grant employee benefits in order to discourage
union membership or activities.
WE WILL NOT engage in, or create the impression of surveillance of the
union activities of our employees.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in their right to join or assist any union , or bargain
through a union of their own choosing , or engage in concerted activities with
respect to terms and conditions of employment , or to refrain from any such
activity.
WE WILL offer to John Brown the position he previously held and the work
to which he was assigned prior to October 7, 1965, and we will make him
whole for any loss which he may have suffered as a result of changes in his
assignments and working conditions after that date made to discourage union
membership or activities among our employees.
All of our employees are free to become, remain , or refrain from becoming or
remaining , members of Teamsters , Chauffeurs , Helpers and Taxicab Drivers Local
UNION 327 , I.B.T.C .W. and H . of A., or any other labor organization.
PARK SHERMAN COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon appli-
cation and in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
BUSH HOG, INC. 1575
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis , Tennessee 38103,
Telephone 534-3161.
Bush Hog, Inc. and Teamsters Local Union 612, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Ind.
Bush Hog, Inc. and Chelcia Averette . Cases 15-CA-2670,15-RC-
3093, and 15-CA-9720-3. December 7, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner Josephine H. Klein issued her
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner further found merit in the
objections by the Union to the election conducted on June 25, 1965,
and recommended that Case 16-RC-3093 be severed and remanded to
the Regional Director for Region 15 for appropriate action. There-
after, the Respondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and the General Counsel filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in these cases, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, except as modi-
fied herein.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Bush Hog, Inc., Selma, Alabama, its officers, agents,
successors , and assigns shall:
1. Cease and desist from unlawfully questioning employees, threat-
ening them with reprisals, promising or granting them benefits, advis-
161 NLRB No. 136.