Roselon Southern, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1965

152 N.L.R.B. 1173 (N.L.R.B. 1965)

ROSELON SOUTHERN, INC. 1173
Roselon Southern , Inc. and Allied Industrial Workers of America,
AFL-CIO, Region #4. Cases Nos. 10-CA-5500, 10-CA-5625, and
10-CA-5762. June 4,1965
DECISION AND ORDER
On December 29, 1964, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled proceeding, finding that 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 Trial Examiner's Deci-
sion. Thereafter, the General Counsel, Respondent, and the Charging
Party filed exceptions to the Decision with supporting briefs.
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 [Members Fanning, Brown, and Jenkins].
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 Decision,
the exceptions and briefs, and the entire record in these cases, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
Respondent, Roselon Southern, Inc., Crossville, Tennessee, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Crossville,
Tennessee , on September 1 and 2, 1964, on the amended complaint, as amended, in
Case No. 10-CA-5500, and a consolidated complaint in Cases Nos. 10-CA-5625
and 10-CA-5762, of the General Counsel and the answers , as amended , of Roselon
Southern , Inc., herein referred to as Respondent .' The issues litigated, in the
amended complaint , were whether the Respondent violated Section 8 ( a) (3) and (1),
1 The charge in Case No. 10-CA-5500 was filed on October 14, 1963 A complaint was
issued on March 3 , 1964 , and an amended complaint was issued July 16 1964 A charge
was filed in Case No. 10-CA-5625 on February 26, 1964, an amended charge was filed
on March 5 , 1964 , a second amended charge was filed on July 15 , 1964 . A charge in
Case No . 10-CA-5762 was filed on June 16 , 1964 A consolidated complaint in the latter
two cases , and an order consolidating the cases for hearing was issued on July 16, 1964
152 NLRB No. 118.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, in the consolidated complaint, Sections 8(a)(5), (3), and (1) and 2(6) and
(7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein
called the Act. The parties waived oral argument and briefs presented by the
General Counsel and Respondent have been carefully considered. During the hear-
ing the Trial Examiner reserved rulings on several motions, including General Coun-
sel's motion for summary judgment or judgment on the pleadings, with respect to
the 8(a)(5) issues, and Respondent's motion for dismissal of the 8(a)(3) allega-
tions These motions are disposed of in accordance with the findings and conclusions
herein set forth.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent is a Tennessee corporation, maintaining its principal place of business
and a plant in Crossville, Tennessee, where it is engaged in the manufacture and sale
of yarn. During the 12 months preceding the issuance of the amended complaint,
and a like period preceding the issuance of the consolidated complaint, each a repre-
sentative period, Respondent sold and shipped products valued in excess of $50,000
directly to customers located outside the State of Tennessee. The complaints allege,
the answers admit, and I find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answers admit, and I find that Allied Industrial Workers
of America, AFL-CIO, Region #4, herein referred to as the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The principal issues raised by the pleadings and litigated at the hearing, in Case
10-CA-5500, are whether the Respondent: (a) engaged in conduct constituting
interference, restraint, and coercion by (1) threats made by President A. Gordon
Adams on or about July 24 and August 20, 1963, or (2) promises of economic bene-
fits, in August 1963, in violation of the provisions of Section 8(a)(1) of the Act; or
(b) by discriminatorily discharging Herman L. Wilson and Charles T. Davis, on
October 7, 1963, in violation of the provisions of Section 8(a)(3) and (1) of the
Act. The principal issues raised by the pleadings and litigated at the hearing, in
Cases Nos 10-CA-5625 and 10-CA-5762 are whether the Repondent• (a) engaged
in a refusal to bargain, on or after June 1, 1964, or unilaterally, without notice to or
consultation with the Union, granted a general wage increase, on or about June 9,
1964, in violation of Section 8(a)(5) and (1) of the Act, or (b) discriminatorily
discharged, and thereafter failed and refused to reinstate Morris D. Smith, on or
about September 14, 1963, in violation of Section 8(a)(3) and (1) of the Act The
Respondent generally denies the commission of any unfair labor practices, however,
Respondent does not deny the discharges of the three named individuals, but contends
that each was a supervisor at the time of his discharge. Respondent asserts that said
dischargees, because of supervisory capacity, are excluded from the proscriptions of
the Act. Respondent does not deny that a request was made for it to bargain, and
that said request was denied, but asserts that the certification issued by the Board
abrogates and destroys the rights guaranteed to Respondent's employees in Section 7
of the Act and is invalid as a matter of law.
B. Background-the representation proceeding
It is undisputed that in the early part of July 1963 the Union undertook an organ-
izing campaign at Respondent's plant, culminating in the filing of a petition for
certification on July 16, 1963.2 Thereafter a stipulation for certification upon consent
election was approved by the Regional Director for Region 10 on August 2, 1963.
21 have taken official notice of Case No. 10-RC-5639.
ROSELON SOUTHERN, IN C. 1175
Subsequently an election, by secret ballot, was conducted on August 22, 1963, among
the employees in the agreed appropriate unit. The parties agreed, in said stipulation,
that the following employees of Respondent constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act
All production and maintenance employees of Respondent, excluding office
clerical employees, professional employees, guards, and supervisors as defined
in the Act.
In a report on objections and challenged ballots, the Regional Director found that
there were approximately 148 potentially eligible voters, that a tally of ballots fur-
nished to the parties reflected 69 valid votes for and 55 valid votes against the Peti-
tioner, and 18 challenged ballots. 7 he employer filed timely objections to conduct
allegedly affecting the results of the election. The Regional Director recommended
that 13 challenges be sustained, on the ground that 11 specified fixers were super-
visors 3 and that 2 named employees were temporary or casual. The Regional
Director also recommended that five challenges be overruled on the ground that three
named instructors 4 and a repairman were not supervisors and that one employee's
name was omitted from the eligibility list by mistake. The Regional Director also
found that the objections raised no material or substantial issues and should be over-
ruled, and recommended that the Petitioner be certified.
The Employer and Petitioner filed timely exceptions to the Regional Director's
report. The Employer excepted to the Regional Director's conclusion that the three
instructors and repairman were not supervisors, and to his recommendation that the
objections be overruled. The Petitioner excepted to the Regional Director's finding
that 8 of the 11 named fixers were supervisor. Neither party filed exceptions to the
finding relative to the three other fixers having been found to be supervisors, nor to the
finding that two employees were temporary or casual
On November 15, 1963, the Board issued an Order directing a hearing to ascertain
whether (1) fixers are supervisors, and (2) the objections raise material or substantial
issues with respect to the results of the election. Subsequently, a hearing was held
and on January 24, 1964, the Hearing Officer issued his report and recommendations.
The Hearing Officer found that the eight fixers were supervisors, that the three
instructors were not supervisors, that the Employer's objections did not raise sub-
stantial or material issues affecting the conduct of the election, and recommended that
the Board certify the Petitioner. The Employer's objections, considered by the Hear-
ing Officer, concisely stated, were that supervisory personnel engaged in the conduct
of the organizing campaign prior to the election, solicited votes for the Union on
company time and property, conducted union organization meetings at their homes,
and engaged in acts of coercion and intimidation directed at other employees in such
a manner as to render a free choice of the bargaining agent an impossibility.
On May 20, 1964, upon consideration of exceptions filed by the Employer and the
Petitioner, the Board found- The 15 challenged ballots remaining in dispute were
insufficient in number to affect the results of the election; and the objections do not
raise substantial or material issues affecting the results of the election, said objections
being overruled, the Union was certified.
C. The refusal to bargain
The consolidated complaint alleges, the answer admits, and I find that on or about
May 28, 1964, and at all times thereafter, the Union requested Respondent to bargain
collectively, that on or about June 1, 1964, and at all times thereafter, Respondent
refused and continues to refuse to bargain
Respondent, in its answer, asserts that the certification issued by the Board abro-
gates and destroys the rights guaranteed to Respondent's employees in Section 7 of
the Act and is invalid as a matter of law. Respondent concedes that this contention
was fully litigated in the representation case and does not contend that there is any
newly discovered evidence concerning the issues raised and determined in those
proceedings.
At the outset of the instant hearing, General Counesl contended, and the Respond-
ent conceded, that under the Board's Rules and Regulations, Series 8, as amended,
3 Of the fixers named as supervisors we are herein concerned , infra , with Charles Davis,
Herman Wilson , and Morris Smith
4 Sarah Pugh , Illa Poteet , and Claudia Beaty
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more particularly Section 102 . 67(f),5 matters properly litigable or litigated in a repre-
sentation proceeding cannot be relitigated in an unfair labor practice proceeding.6
Respondent correctly urges that the validity of the certification can be reviewed
only through the instrumentality of a complaint proceeding alleging a Section 8(a) (5)
violation . Respondent urges that the Union was brought in to being , as collective-
bargaining representative , administered , fostered , and aided by supervisory officials
from the date of its inception to the date of the election . Respondent urges that the
Board has held that where supervisors participated in the initiation , formation, and
administration of a union , that the union exists in derogation of the Section 7 rights
of the employees , in that the employees did not freely , and could not freely, choose
this kind of a union as a bargaining agent.?
Concluding Findings
The Trial Examiner is bound by the Board's certification of the Union as the
collective -bargaining representative of the employees in the unit described. Capital
Bakers, Inc., 148 NLRB 438, (see cases cited in footnotes 5 and 6, Trial Examiner's
Decision); Douglas County Electric Membership Corporation, 148 NLRB 559.
Upon consideration of all of the foregoing , and on the record as a whole, I find
that Respondent' s admitted refusal to bargain collectively with the Union, on and
after June 1, 1964, as the exclusive representative of its employees in the above-
described appropriate unit constitutes a violation of Section 8(a)(5) and (1)
of the Act.
D. June 9, 1964, wage increase
The consolidated complaint , alleges, the answer admits, and I find that on or about
June 9, 1964, Respondent unilaterally and without notice to or consultation with the
Union granted a general wage increase to all its employees in the aforesaid unit.
General Counsel contends that this action was a violation of Section 8(a) (5) and
(1) of the Act. The answer asserts that Respondent was acting within its constitu-
tional and legal rights because the certification was invalid . Respondent concedes
this wage increase was a violation of both Section 8(a)(5) and ( 1), if the certifica-
tion was valid.
The assertion of President A. Gordon Adams that this wage increase was granted
to enable Respondent to maintain its competitive position in the labor market area
constitutes an explanation of the reason for the increase . It does not constitute an
adequate reason for Respondent 's admitted failure to give notice to and consult with
the Union , or the granting of said wage increase unilaterally.
Concluding Findings
Having found that the Board had certified the Union as the exclusive representative
of all employees in an appropriate unit for the purposes of collective bargaining on
May 20 , 1964, it follows , and I find, that the unilateral granting of the wage increase,
thereafter, without notice to or consultation with the Union , is a violation of Section
8(a)(5) and ( 1) of the Act.
E. Interference restraint, and coercion
It is alleged in the amended complaint that Respondent engaged in conduct viola-
tive of Section 8(a)(1) of the Act. Specifically , President A. Gordon Adams is
alleged to have threatened employees that the plant would be closed if the Union
was successful , to have promised benefits in the form of a paid vacation for 1964
and a pay raise , all events being in the period between the filing of the petition for
certification and the holding of the Board election . In its answer , Respondent denied
8 Section 102 67 ( f) provides : "The parties may, at any time, waive their right to request
review. Failure to request review shall preclude such parties from relitigating, in any
related subsequent unfair labor practice proceeding , any issue which was , or could have
been , raised in the representation proceeding Denial of a request for review shall con-
stitute an affirmance of the regional director 's action which shall also preclude relitigat-
ing any such issues in any related subsequent unfair labor practice proceeding."
9 However , the Board did not decide the supervisory status of fixers, dispositive of some
of the issues considered infra.
7 Respondent does not appear to distinguish between what are commonly referred to
as Section 8(a) (2) (employer sponsored ) unions and those certified as the result of a
Board- conducted election.
ROSELON SOUTHERN, INC. 1177
the making of threats and promises of benefits , except relative to a pay raise in August
1963, Respondent asserted that "if" wage increases were granted, said increases were
lawfully and properly granted . At the outset of the hearing, this qualified answer was
amended to deny the granting of a wage increase in August 1963.
It is undisputed that President Adams made three separate speeches , that each time
substantially the same speech was given separately to the employees on each of the
three shifts , and that all of the speeches were made within the month preceding the
election. Thus, the speeches were given between the date of the filing of the petition
for certification and the date of the Board election . No effort was made by any of
the witnesses , including Adams, to separate the content of any one speech from the
content of the others.
It was assereted that Adams stated that he owned four other plants all of which
were nonunion , that a previous union attempt to organize one or more of these
plants resulted in a shutdown of 6 to 8 weeks, and that Adams would hate to have
that happen at Crossville . Adams also related that there was a plant in Chattanooga
which had been shut down by the Union , by strike, that was not operating now and the
Union had not been able to get the employees ' jobs back. Adams asserted that no
outside organization was going to tell him how to operate his plants , they never had
and never would, that he was a sick man and would have to shut his plant down and
move. Adams not only asserted that he reserved the right to close the doors of the
plant and move elsewhere any time he saw fit, but also asserted that if the employees
made it so rough on him that he could not operate, that he would do that. Adams
asserted that he had no organized labor in his other plants and did not intend to
have any in this plant .8 Adams promised the employees a paid vacation in 1964.
It is undisputed that a 5-cent pay raise was granted , plantwide in July 1963, and a
second 5-cent raise, plantwide , was granted about August 9, 1963.9 The employees
were given a paid vacation , which they had not previously received , in 1964. It is
undisputed that Respondent never consulted with any representative of the Union
concerning the wage increase or the promise of a paid vacation.
President Adams' version was that his speeches related mainly to the quality prob-
lem which threatened the existence of the business , and his reasons for changing the
top plant management . He acknowledged telling the employees that strikes were
disastrous in many cases and well could be in this plant . He called attention to the
fact that in 1933 they had had such a strike , which he asserted lasted 9 weeks and
almost broke everyone . He asserted that he hoped that nothing of that nature would
interrupt Respondent 's production in the Crossville plant . He acknowledged making
reference to a strike situation in Chattanooga , where 1,700 people had been laid off
as the result of a strike , and that plant was, at the time of Adams' speech , attempting
to rent the space to Respondent . Adams specifically denied making any statement
that if the Union got rough he would close the plant . He asserted that he told the
employees , when this question came up, that he thought it was an improper question
and had no place in the campaign for an election , that his words might be twisted so
as not to resemble what he was saying , and that he would accordingly not answer the
question . Adams was uncertain but acknowledged that he might have advised the
employees that he gets letters every day from people asking him to put a plant else-
where. Adams acknowledged that in the speech he promised the employees a paid
vacation but asserted that this was not the first time such a promise was made. How-
ever, he acknowledged it was the first time the employees were told that the paid
vacations would be put into effect in 1964. Adams asserted "I also felt that this
discussion was more than justified with these people because of the various reports that
had come to me of threats and violence , that outsiders were going to come in here
and run our business for us, that new people would not be trained unless they signed
cards, and old people would be fired unless they joined , and the pay was going to be
$ 2 to $2 . 50 an hour here after we get in, and a lot of this kind of stuff which , whether
it's true or whether it wasn ' t, I was in no position to decide , but I felt that as a good
business man I had too much at stake to sit idly by and not have a talk with my
people." Adams then asserted "If it hadn 't been this kind of goings on, I would
probably have waited until later on," to announce the paid vacation . Adams ac-
knowledged the granting of wage increases in July and August. He explained that one
was dictated by the Federal Government , undoubtedly alluding to the minimum wage
increase , and felt it was no more than right to give it to the employees 4 or 5 weeks
in advance. He incorrectly asserted that the other wage increase was motivated by
s A composite of the credited testimony of Davis, Wilson , Smith , Hedgecoth , and Threet.
General Counsel does not contend the July pay raise was violative of Section 8(a) (1).
1178 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
reason of an ad in a local newspaper , for help, by a competitor . Adams later
acknowledged that his reference to the competitor related to the June 1964 increase,
not the July or August 1963 increases.
To the extent Adams' testimony is at variance with the testimony of the witnesses
for General Counsel, identified in the footnote supra, I credit the latter.
Concluding Findings
The Board in the Brownwood case 10 said:
An analysis of these speeches clearly reveals that they were designed to convey
the firm impression that strikes and the loss of benefits and security arising there-
from were inevitable with the selection of union representation , and that the
choice of this Union would mean the loss of Government contracts upon which
operation of the plant depended . Furthermore, they contain thinly veiled threats
of reprisal through loss of benefits either as a result of moving or closing the
plant or by discharge of those who did not meet the minimum production
standards established on a "cold business basis." [Footnote omitted.] Nor was
the existence of these threats and warnings mitigated by the various statements
indicating Respondent's intent to "try to continue to operate and replace those
who went on strike ." and to continue to operate the plant "if the Union
should accidently win the election ... so long as I can get Government contracts."
If Respondent did not wish the employees to be concerned with these possi-
bilities there was no need to raise them in the first place. Having sounded the
alarm, Respondent cannot so easily avoid the effect of its words.11
Even were I to extend credence to Adams' recitation of what was said in these
speeches , which were admittedly made "off the cuff," it appears significant that
Adams asserted that the employees were promised that Respondent would "give
them the things they wanted as soon as we could safely do it and we would do it
without any force on their part to obtain them." However, Adams made it plain that
what he was opposing was "outsiders were going to come in here and run our busi-
ness for us " Adams acknowledged "If there hadn ' t been this kind of goings on, I
probably would have waited until later on," to make the promise of a paid vacation.
Adams acknowledged that he might have advised the employees that he gets letters
every day from people asking him to put a plant elsewhere . Most meaningful is
Adams' admission that he explained the economics of the situation and that no one
could pay $2 50 an hour because it was not there to give them "and anybody that
was giving them that line of talk was not truthful with them ." Adams then acknowl-
edged "I told them we would be out of business immediately because we would be
outcosted , in the market , outpriced."
Accordingly , on the basis of the credible evidence in the record , I find that Adams
did threaten to close the plant if the Union were successful , and that such a threat
is violative of the provisions of Section 8(a)(1) of the Act.
The Supreme Court has noted that the unconditional , unilateral granting of finan-
cial benefits to employees during the pendency of a representation proceeding, such
as herein, are violative of Section 8(a)(1). N.L.R.B. v . Exchange Parts Company,
375 U S. 405 The Court said:
The danger inherent in well-timed increases in benefits is the suggestion of a
fist inside the velvet glove. Employees are not likely to miss the inference that
the source of benefits now conferred is also the source from which future bene-
fits must flow and which may dry up if it is not obliged.
In view of Adams ' admission that he would have waited until later on to grant a
paid vacation in 1964 had it not been for the union activity of the employees, it is
reasonable to imply that the purpose of the promise , at that time , was Respondent's
recognition of its impact on the employees in their determination of the desirability
of selecting a collective -bargaining representative . Such conduct clearly constitutes
interference , restraint , and coercion within the meaning of Section 8 ( a)(1) of the Act.
i0 Brownwood 11Tanifactocring Company/, 149 NLRB 921
'i See also Action Wholesale, Inc , d/h/a A L French Co , 145 NLRB 627 ; Hai old 111'cller,
Herbert Charles and Milton Charles, Co-Partners, d/b/a Miller-Charles and Company,
146 NLRB 405 ; Johnnie's Poultry Co , 146 NLRB 770.
ROSELON SOUTHERN, INC. 1179
Respondent's assertion that the plantwide wage increase, in August 1963, was
necessitated by minimum wage legislation avoids rather than explains the selected
timing. While it is true that a $1.25 minimum wage became effective on September 3,
1963, not all who received the increase were below that minimum. No adequate
reason has been presented for the announcement of this increase in early August,
except the pending election. Accordingly, I find these benefits were intended to have
the effect of inducing employees to vote against the Union.
I find that the announcement of the granting of a paid vacation in 1964, and the
announcement and granting of a wage increase on or about August 9, 1963, were, in
each instance, violative of the provisions of Section 8 (a) (1) of the Act.
F. The discharges of Charles T. Davis and Herman L. Wilson
It is undisputed that Wilson and Davis were discharged on October 7, 1963. Gen-
eral Counsel contends that the discharges were discriminatorily motivated by reason
of the Union or concerted activities of the dischargees. Respondent contends that
the dischargees are supervisors, thus excluded from the proscriptions of Section
8(a)(3).
Respondent's plant is divided into four departments, namely: winding, twisting,
crimping, and packing. All departments, except packing, operate on a continuous
24-hour basis, 5 days a week.12
It is undisputed that the plant supervisory hierarchy includes A. Gordon Adams,
president, Jack Stevenson, plant manager until June 1963, Clarence O'Dell, plant
superintendent, and Bernard Shalango, third-shift foreman. V. A. Schiffer replaced
Stevenson as plant manager in June 1963. It is undisputed that Frank Maguire was
hired on September 3, 1963, and became second-shift foreman on approximately
September 24, 1963. It may be inferred, and I find, that Schiffer and Maguire are
supervisors within the meaning of Section 2(11) of the Act.
The balance of the work force, insofar as relevant herein, is comprised of fixers,
instructors, machine operators, creelers, yarn boys (also called pirn boys), yarn girls,
and maintenance men. At the time of the election there were two fixers on each
shift in the crimping department and one fixer on each shift in both the twisting and
winding departments. On approximately September 1, 1963, some 10 days after the
election, the number of fixers in the crimping department was reduced to three, one
for each shift.
Respondent uses raw nylon which is run through crimping machines, heat treated,
and converted to banlon, which is run on a cone as a single ply in the crimping
department. These cones then go to the twisting department where they are com-
bined to produce a multiple ply (two ply, three ply, etc.), with a right twist or a
left twist, or multiple twist, as specified. The product is then sent to the winding
department where it is wound on a cone, then sent to the shipping department for
inspection and packing.
Charles T. Davis was employed by Respondent on August 22, 1960, as the fixer
in the twisting department on the second shift, and remained in that position at all
times until his discharges on October 7, 1963. Herman L. Wilson was initially
employed in April 1961 as a maintenance man and on an unspecified date, prior to
February 1962, became the fixer in the winding department on the second shift It
is undisputed that fixers did not have the right to hire, suspend, lay off, recall, promote,
discharge, reward, or discipline other employees. It is disputed, and the evidence
is in conflict as to whether they had, and exercised, the right to transfer, assign, or
responsibly direct other employees in a manner not of a merely routine or clerical
nature, but requiring the use of independent judgment.
It is undisputed that Clarence O'Dell, plant superintendent, was normally at the
plant from 6:30 a in. until 6 p.m. each day, and available upon call thereafter Ber-
nard Shalango, third-shift foreman, reported about 10.30 p in. No foreman or other
top supervisory personnel was in the plant between the hours of 6 p.m. and 10:30
p.m., until the employment of Maguire, as second-shift foreman, on September 24,
1963 The hours of the three shifts were 7 a.m. to 3 p.m., 3 to 11 p.m., 11 p in to
7 a.m., respectively.
This record substantiates, as the Regional Director earlier reported, that the fixers
are skilled mechanics, whose primary responsibilities consist of keeping the machinery
in their respective departments in good running order, and advising and instructing
the machine operators in the proper operation of these machines. The fixers are
12 We are not here concerned with limited operations on Saturday or Sunday.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid $1.35 an hour, and work in departments where all other employees were paid
$1.25 an hour, after the August 9, 1963, wage increase, set forth supra. In addition,
when it was necessary to change the setting of a machine, such as changing from a
left to a right twist, or from a 21/2 or 3 turn to a 11/2 turn, these adjustments and
resettings were made by the fixers.
Davis acknowledged there were eight girls working in the twisting department on
the second shift, four were operators and four were creelers. There were 12 machines
in the department, 1 operator and 1 creeler worked together on 3 machines. The
creeler worked on a loading machine, setting cones, so that when a cone ran out
the other cone picks it up and saves having to stop and tie a knot. The machines are
described as each being 50 feet long, approximately 10 feet high with 100 spools or
bobbins to each machine. The operators would combine single ends of thread, on a
creeling rack, to create a multiple ply, 2, 3, 4, etc., and after twisting they were fed
onto a bobbin. The fixers received their instructions from O'Dell verbally or from a
logbook, and noted on a logbook what was accomplished on each shift so the twister
following would know the status of the work. The operators would receive their
instructions from a job sheet, prepared by O'Dell, which was placed on each machine.
The operators patrolled the machine and would place a tag, when a malfunction was
discovered, for the fixer to make the necessary adjustment. The fixer similarly
patrolled, looking for malfunctions as time permitted.
Davis acknowledged that when a machine was not functioning properly it could
be the fault of the fixer, the operator, or the machine. He acknowledged that when
he found that an operator had threaded the machine wrong, or made some other error,
he would correct her and explain what she had done improperly, such as not threading
it properly. While Davis asserted he had never disciplined operators, he acknowl-
edged he had issued warning slips, where operators had failed to follow procedures,
had neglected to watch her machine, or had let her yarn get dirty. Davis asserted
that he had never issued a warning slip without specific instructions from O'Dell.
Davis acknowledged that he did transfer operators from one machine to another on
occasions. He explained that if a machine needed attention from maintenance men,
who worked only on the first shift, or if an operator had not reported for duty and
there were not enough to cover the shift they would have to shut down one or more
machines. Davis asserted that he always notified O'Dell to ascertain what machines
he wanted to shut down.
Davis acknowledged that he was instructed to tell the operator if she was doing
something wrong and to show her how to do it right, it was his decision as to the
nature of the error and he would correct the operator accordingly, particularly where
they were not following set procedures. Davis acknowledged that if an operator
wanted to go home, by reason of alleged illness, the operator came to him for an
absentee slip and he kept records of such absenteeism. These absentee slips reflected
whether the employee left with or without permission. Davis admitted that he was
instructed, in preparing warning slips, to note whether it was a first, second, or third
notice. Davis acknowledged knowing that three warning slips could subject an
employee to discharge.
Davis admitted that he and Wilson were instructed that one of them had to be
present at all times while the machines were being operated. The twisting and wind-
ing departments were adjacent to each other. When either Davis or Wilson were
absent, the one present had the same responsibilities for both departments. Davis
acknowledged that he was responsible for the quality of the work in the twisting
department, but was uncertain about his responsibility for quantity. It is undisputed
that he did keep production records until September 24, 1963, when Maguire became
second-shift foreman, in charge of all three departments. Davis first stated that he
was uncertain if he made any reports to O'Dell about the work performance of any
employee, asserting "I could have." However, Davis acknowledged being told by
O'Dell to watch certain employees closely on given occasions. Davis was not certain
whether he thereafter reported. In view of Davis' admission that he did issue warn-
ing slips, relative to work deficiencies, it would appear that such reports were made
by him. Accordingly, I do not credit Davis' denial that he ever issued a warning
slip after having made a report to O'Dell. Neither do I credit Davis' denial of
knowledge as to whether he signed the warning slip in the capacity of either a super-
visor or foreman, both titles appear on the warning slip forms used by Respondent.
Wilson described his duties as fixer in the winding department as being substantially
the same as those of Davis, in the twisting department, except Wilson did not keep
production records. There are 10 machines in the winding department, with 11 or 12
operators and a yarn girl. The machines are placed next to each other in such a
manner that 1 operator can operate one side of each of 2 machines, each machine con-
taining 60 spindles on one side. The operator places yarn on the machine on the bob-
ROSELON SOUTHERN, INC. 1181
bin at the bottom, places an empty cone on the spindle at the top, starts the yarn rolling
on the new cone and lets the roller down, to make a uniform cone. If a thread breaks
she stops the machine, ties the broken thread and restarts it. There is a worksheet at
the end of the machine which advises the operator of the procedures to be followed
and the particular type of work to be run.
Wilson also spent part of his time patrolling, and when he found a defective head,
he adjusted it, gauged it, and started it running again. If Wilson observed an operator
doing something incorrectly he would call her attention to it, and explain to her the
way it should be done properly. Wilson denied ever disciplining an operator, but
acknowledged having issued warning slips. He asserted these were issued as a result
of specific orders from O'Dell. Wilson asserted he did not have authority to write a
warning slip without consulting with O'Dell first. Wilson acknowledged there were
occasions when O'Dell would tell him to watch a particular operator and if the
operator continued making the same mistake to report it to him. Wilson acknowl-
edged that on one or two occasions, after having made such a report, he was instructed
by O'Dell to issue a warning slip. Wilson acknowledged having received instructions
from Stevenson to watch a particular employee who was staying away from the
machine too long. When Wilson made his report, the following day, Stevenson
instructed him to issue a warning slip. Wilson admitted there were occasions, when
an operator's machine was down, that he would assign her to assist another operator.
Wilson prepared absentee records, where O'Dell advised him of the absence of an
employee, or if an employee left during the shift, by reason of illness.
Wilson acknowledged that the quality of the yarn could be affected in several ways.
He explained if an operator's hands were dirty and she handled the yarn, or if the
fixer did not fix the machine correctly so that it was not running properly it might run
bad yarn, or make poor quality yarn. If there were too many breaks and more than
three knots were required it became second-grade yarn. Wilson acknowledged that
insofar as correct maintenance of the machines affected quality this was his respon-
sibility. However, he denied having overall responsibility for quality in his depart-
ment, on his shift. Wilson then acknowledged that his testimony in the prior hearing
was at variance with his testimony herein, relative to his responsibility for quality.
Victor Schiffer, plant manager, credibly related that about the middle of June
1963, he advised Davis and Wilson what he had found wrong with their work. Schif-
fer related that he advised them that they would have to take corrective measures
when they saw work needing correction, in order to get better work out of their
departments on their shifts. Schiffer asserted that he advised them that they were
fully expected to improve their departments and to report to him, or to O'Dell, when
correction was needed or any suggestions they had for improving the product. To the
extent the testimony of Schiffer is at variance with that of Davis and Wilson, relative
to the latter's responsibility for quality, I credit Schiffer.
Wilson's feigned lack of knowledge as to whether he functioned as a maintenance
man or fixer is not credited. The record amply establishes that maintenance men
were on the first shift only, and when there was a major machine breakdown this
became the responsibility of the maintenance men.
Wilson acknowledged issuing four warning slips , introduced by Respondent. One
warning, dated February 1962, was issued because an employee remained too long
in a restroom. A warning slip issued in February 1963 recites that the employee did
not work the way she was supposed to, the assigned reasons for the warning slip were-
"attitude" and "disobedience." A warning slip dated June 1963 was for "defective
work." A warning slip dated May 1963 specifies "carelessness ," is using the wrong
ply. Wilson explained that the first warning slip was the result of Plant Manager
Stevenson advising him to pay close attention to the employee and to report to him
the following day. When Wilson advised of the excessive period the employee was
in the restroom, he was instructed to issue the warning slip. The second warning
slip to the same employee, a year later, was the result of Wilson asking the employee
to do some work, with a result that the employee " cursed me out." When Wilson
reported the events to O'Dell, Wilson was instructed to issue the warning slip. It was
Wilson's version that the other two warning slips resulted in some discoveries made
in the first instance by O'Dell, resulting in instructions , by O'Dell, to issue the warnings.
Genise Davis, formerly employed by Respondent, credibly testified that she was
reprimanded on more than one occasion by Davis for leaving her work station. She
asserted that on a number of occasions she was transferred from work in the twisting
department to work in the winding department by Davis, and was retransferred, fre-
quently, by Wilson. Sarah Elizabeth Burgess, who was initially employed by Respond-
ent in October 1962, credibly related that while she was working in the winding depart-
ment it was Wilson who assigned her to her machine, if her machine broke down or
had to be repaired it was Wilson who told her where to work. Wilson on occasions
reprimanded her for being away from her machine, in the restroom for too long a
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period. Ova Kathleen Hale had been employed by Respondent more than 4 years
at the time of her testimony. She credibly related that she worked in both the twist-
ing department and winding department in 1963 and was frequently transferred from
one department to the other. She related that it was Wilson who had advised her of
the transfer from the winding department to the twisting department, on different occa-
sions, and Davis who would send her back to the winding department. She worked
on the unirail machine in the twisting department and it was Davis who had trans-
ferred her from work on that machine to work on other machines. While Charles
Davis denied ever transferring an operator out of the twisting department and Wilson
denied ever discussing with Davis the transfer of the employees, in the light of the
contrary testimony of Respondent's witnesses, I do not credit these denials.
Davis and Wilson both acknowledged that their duties were not changed in any
manner, except for the keeping of production records, after Maguire became second-
shift foreman.
Concluding Findings
I find some of the denials of Wilson unimpressive. He acknowledged that he was
transferred from the first shift to the second shift about April 1962, by Plant Manager
Stevenson. Wilson asserted that he did not know if, at the time of his discharge, he
was a fixer or a maintenance man Later Wilson acknowledged that maintenance
men worked only on the first shift, while Wilson worked on the second shift. Wilson
acknowledged that when he was first hired he worked all over the plant, in all depart-
ments, while after he was reassigned he worked entirely in the winding department,
except during the absences of Davis, when he assumed responsibility for both depart-
ments. Wilson acknowledged when he was doing maintenance work he was princi-
pally cleaning machines, while when he was working as a fixer it was not his job to
clean machines. Wilson acknowledged that he could not identify any maintenance
man who ever gave out a warning slip.
While there is undisputed evidence that Davis and Wilson signed union cards on or
about July 11, 1963, and so advised O'Dell on July 15, 1963, I find it unnecessary to
treat with the question of Respondent's knowledge of the union activities of these
individuals.
The court in the Beaver Meadow case 13 said: "We quite agree that Section 2(11)
must be read disjunctively, that the possession of any one of the Section 2 (11) powers
will make one a supervisor, and that the fact of possession of the power regardless
of its nonexercise that is determinative."
The Board has held in Capital Transit Company, 114 NLRB 617, 618:
It is well settled that the mere title of supervisor as applied to certain positions
does not establish supervisory status under the Act. Rather, it is the functions,
duties, and authority of the individual which must be determinative according
to statutory standards. And the power or authority bestowed must not "be
`routine' in the natural sense of that word." Nor may the discretion accompany-
ing the duties be so circumscribed by limitations, either in the authority granted
or in the specific conditions placed upon the exercise of such authority, as to
negate the use of independent judgment. Further, it may not be a sporadic
assumption of a position of command and responsibility. On the other hand,
the real existence within an individual's regularly assigned duties of any of the
powers enumerated in Section 2(11) will make a man a supervisor even though
the necessity for the exercise of such power is infrequent. But where the issue
is the actual existence of a supervisory power, the absence of any exercise of
authority may negative its existence. Thus, there is precedent for the position
that frequency or infrequency of the exercise of authority becomes irrelevant
only where there is no question that the authority conferred is supervisory.
There is ample credible evidence that both Davis and Wilson assigned employees,
working in their respective departments, to different work stations and transferred
them from the twisting department to the winding department, and vice versa. In
addition, there is evidence that these individuals signed warning slips when an employee
engaged in misconduct or carelessness, and on one occasion because of abusive
language addressed to Wilson. The fact that these warning slips were issued only
after instructions from Stevenson or O'Dell, if true, is of little consequence. It is
also patent that when an operator was not following prescribed procedures these
individuals would correct the operator and show her the proper way to perform the
particular function The record would not support a finding that these frequent
instructions were merely of a routine nature. It may be inferred, in view of the
absence of O'Dell from the plant, normally between the hours of 6 p.m. and 10:30
13 N.L.R.B. v. Beaver Meadow Creamery, Inc, 215 F. 2d 247, 251 (C.A. 3).
ROSELON SOUTHERN, INC. 1183
p.m., that the reports of Davis and Wilson to O'Dell, relative to work deficiences of
employees, would be made on the following workday. It would appear undisputable
that the issuance of a warning slip is a matter of discipline. This would be particu-
larly true where three such warnings slips could result in discharge. It may be
inferred, and I find, that Wilson and Davis could and did effectively recommend
such action.
Accordingly, for the reasons stated, I find that Wilson and Davis were supervisors
within the meaning of Section 2(11) of the Act I will recommend dismissal of the
allegations of paragraphs 10 and 11 of the amended complaint.
G. Layoff of Morris D. Smith, September 14, 1963, and refusal to recall
It is undisputed that Smith was laid off on September 14, 1963, and that the
Respondent has ever since failed and refused to recall him. General Counsel contends
that the layoff and the failure to recall were discriminatorily motivated. Respondent
asserts that Smith was a supervisory employee at the time of the layoff.
Smith was initially employed by Respondent on August 25, 1960. He became a
fixer, on the third shift in the crimping department, about May 1961. About 10
months later he was transferred to the second shift in the crimping department. He
continued in that capacity until approximately August 30, 1963. At that time Smith
was demoted to a yarn boy, and it was from this latter position that he was laid off
on September 14, 1963.
O'Dell related that prior to September 1963, there were two fixers on each shift
in the crimping department He identified those on the first shift as Stults and Mon-
roe, on the second shift as Todd and Smith, and on the third shift as Paul Manis and
Daniel Manis. It is undisputed that a number of operators were laid off (estimated
near 30) approximately 10 days after the election At the same time Monroe, Smith,
and Daniel Mams were demoted from fixers to yarn boys, replacing three employees,
inferentially with less seniority, who were then laid off. Two weeks later, on Septem-
ber 14, 1963, the three yarn boys were recalled, Monroe and Smith were laid off, and
Daniel Manis was transferred to the job of fixer, on the third shift, in the winding
department. Manis admittedly had less seniority than Smith at that time. When the
fixers were reduced to yarn boys, their hourly rates were reduced from $1.35 to $1.25.
Respondent has not contended, in this record, that yarn boys (or pirn boys), had
supervisory authority. I find it unnecessary to determine whether Smith was a super-
visor during the period that he was assigned duties as a fixer in the crimping depart-
ment. However, it is noted that the fixers in the winding and twisting department
were removed from supervisory capacity, by Respondent, in October 1963 after the
discharges of Davis and Wilson. O'Dell related that three girls, former operators,
were promoted to supervisor of both the twisting and winding departments in Octo-
ber 1963. He identified these individuals as Polly Mundy on the first shift, Irene Roy
on the second shift, and Kathleen Hale on the third shift. When these individuals
were promoted and made head of the two departments, they ceased doing any manual
labor and spent their time checking quality, production, and directing changes and
operations.
It is undisputed that on August 21, 1963, the day before the election in Case No
10-RC-5639, William Smith, union representative, Albert Monroe, a fixer, and
Schiffer, plant manager, met for a preelection conference. William Smith, at that
time, submitted the names of Morris Smith and Albert Monroe as observers for the
Union at the election. Schiffer asserted at that time that the two named could not
act as union observers because they were supervisors I have found, supra, that
O'Dell was advised, on July 15, 1963, by Wilson and Davis, and other fixers, that they
had signed union cards. O'Dell identified Beecher Hedgecoth and Stults as being
among the fixers who so notified him. He could not identify others, but acknowledged
he reported the signing of these cards to Schiffer I find, as the result of the pretrial
conference, that Respondent knew of the union activities of Morris D. Smith.
Smith related that about a week after he had been transferred and demoted, Schif-
fer advised him that the Company would not let him continue the three fixers as yarn
boys, that Schiffer would have to call the yarn boys back and would lay Smith off.
Smith credibly related that it was not Schiffer, but O'Dell that advised him of his
transfer to yam boy. Smith's assertion that the yarn boy he replaced, Donald Fin-
ley, who in turn replaced him, on September 14, 1963, had been in Respondent's
employ for only approximately 2 months is undisputed. It is undisputed that Morris
Smith was never reprimanded or given a warning slip.
Smith related that about a week after his layoff he inquired of Schiffer, at the plant,
if his layoff was temporary or permanent and Schiffer advised him that it was tem-
porary. In November 1963, having learned that Felix Reagan, a yarn boy in the
twisting department, had quit, Smith called Schiffer to inquire if he could get the job.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schiffer responded "no, because of your job classification ." In December 1963 Smith
inquired of O'Dell about getting his job back and was advised that they still could
not use him
Smith related that he testified at the Board hearing , before the Hearing Officer, on
December 3, 1963, and that Respondent 's attorney , Redmond, was present at that
time. In January 1964, Smith related, Redmond came to the store where Smith was
working and inquired if he was interested in going to work at Respondent 's plant.
Smith responded in the affirmative . Redmond then inquired "You won 't get carried
away with union activities again, will you ?" Smith responded that he did not get
carried away the first time , that he heard both sides of the story . Redmond then
advised Smith that Schiffer wanted to see him. Smith related that he went to the
plant, advised Schiffer of his conversation with Redmond, and was advised by Schif-
fer that he had not advised Redmond to send Smith to the plant . Schiffer advised
Smith he did not have work for him.
O'Dell acknowledged that the three yarn boys were laid off and three fixers placed
in their jobs , that "later we reversed ourself," and the three fixers were laid off.14
O'Dell admitted that Daniel Manis had less seniority than Smith . Smith asserted
that he had 11/2 years more seniority than Manis. It appears undisputed since the
layoff of Smith, Respondent has hired new employees in classification of yarn boy.15
O'Dell acknowledged that Respondent considered seniority in determining the
order of layoffs of the employees . However, he asserted it was coupled with "how
good their work was," but if an older employee was not up to par with a newer
employee they would keep the newer employee. In addition , O'Dell asserted that
they did not believe in taking a supervisor and demoting him to a lower job, because
it was not good for morale . 16 I have found , supra , that O'Dell did not dispute the
fact, that it was O'Dell who did effect the transfer of the fixers to the yarn boy's jobs
initially. O 'Dell made no effort to explain his assertion that this was bad for morale.
Plant Manager Victor Schiffer described the layoffs of Smith and Monroe as "tem-
porary." Schiffer was uncertain whether Smith , Monroe, or Manis had the most
seniority at the time of layoff. He then asserted : "Well, the natural thing was for us
to use our most experienced people. We were in deep enough trouble without ask-
ing for more . We needed our very best personnel , no matter who they were, or how
long they had been there , because we had lost a considerable number of customers
because of bad work, plus the fact that business conditions were not the best. It all
added up to the fact that this occasion , this layoff, so we naturally wanted our best
people in these jobs, and wherever possible, we used the people with the longest
seniority , and generally this is true . The people who have been there the longest were
the most experienced and our best operators in most cases , but not always the case."
Schiffer asserted that in some instances habitual absenteeism was considered.
Schiffer was not certain if it was Finley who was recalled as yarn boy when Smith
was laid off . Schiffer was uncertain if Smith inquired about a week after the layoff
relative to getting his job back, or if Smith later requested the opportunity to replace
Reagen. Schiffer took refuge in the statement that if Smith had so stated he would
agree with the statement , but did not remember it. Schiffer asserted that he advised
Smith that he would not rehire him as a yam boy because his classification was that
of a supervisor . Schiffer denied ever knowing that the fixers engaged in union activi-
ties. I have found, supra, that it is undisputed that Schiffer objected to Morris Smith
and Monroe acting as union observers at the election because they were supervisors.
This was on August 21 . I do not credit Schiffer.
14 O'Dell was inaccurate in asserting that the layoff was in July 1963 He was also
inaccurate in initially relating that Monroe , Smith , and Manis were all laid off. He later
corrected this error Actually Manis was not laid off, but transferred
15 Nicholas Hedgecoth Identified John Presley , James Selby, and Keith Carr in this
category Avery Sherrill related that he was employed by Respondent in November 1963,
as a fixer, and had been engaged in that activity at all times thereafter . He Identified
Keith Carr as a yarn boy , who later became a fixer in the winding and twisting depart-
ments. Sherrill asserted that Carr became a fixer in the early part of 1964 William
Benton Threet corroborated the testimony of Hedgecoth relative to the employment of
Presley and Selby , after the layoff of Smith . Threet asserted that David Barnes was
hired as a yarn boy in October 1963 , and later became a fixer in the winding and twisting
departments , leaving Respondent ' s employment about January or February 1964, and
being replaced , as fixer, by Keith Carr.
16 This testimony is not credited To the contrary, it appears that Beecher Hedgecoth
was demoted from fixer to maintenance , "cleaning bathrooms "
ROSELON SOUTHERN, INC. 1185
Concluding Findings
General Counsel has presented no contention that the demotion of Morris D. Smith,
on or about August 30, 1963, was discriminatorily motivated. What is alleged is that
on or about September 14, 1963, Respondent discharged and thereafter failed and
refused to reinstate Smith. Respondent asserts that Smith was a supervisor and not
within the proscriptions of Section 8(a) (3) of the Act.
It is undisputed that at the time of the discharge Smith was a yarn boy. Respond-
ent made no effort to prove that yarn boys are supervisors. No such contention was
advanced during the election proceedings.
It is patent that since the layoff of Smith other new employees, without prior experi-
ence with Respondent, have been hired, and some of them have been promoted to
fixers, meanwhile. It is also patent that fixers in the twisting and winding depart-
ments are no longer supervisors, according to Respondent's own testimony. While I
have found it unnecessary to pass on Smith's supervisory capacity as a fixer in the
crimping department, the record reflects that Smith actually was an assistant to Todd.
If there is any difference in the skill of the fixers, the requirements in the crimping
department were no less than the requirements in twisting and winding.
Respondent has made no effort to justify its failure to recall Smith, while hiring
other new employees, except to assert that his proper classification was that of fixer.
Since Respondent has promoted new employees to the classification of fixer in the
interim, Respondent's alleged reason for its failure to recall Smith is transparent.
Respondent acknowledges that Smith was never reprimanded or given a warning slip.
The record contains no evidence in conflict with O'Dell's assertion that Smith was a
good employee.
It is beyond dispute that Respondent knew of Smith's union activities at the time
of the election I have found that Respondent retained Daniel Manis, whose senior-
ity was 1i/2 years less than that of Smith, at the time of Smith's layoff. There is no
evidence of the comparable abilities of these two, or that Manis performed better
work I find Respondent's alleged reasons for its failure to recall Smith are after-
thoughts and a pretext and the real reason and moving cause for the layoff, and sub-
sequent refusal to rehire, were Smith's known union and concerted activities.
I find the discharge of Smith, and Respondent's refusal to recall and rehire him,
are, in each instance, violative of the provisions of Section 8(a)(3) of the Act.
During the testimony of Smith, on September 2, 1964, Respondent's counsel
offered Smith immediate reemployment as a yarn boy, provided he would report for
work the following Monday, September 7, 1964. Smith declined the offer. The
Board has held that a bona fide offer of reinstatement made in good faith tolls the
backpay period as of the last day on which the employee could have notified the
employer of the employees' willingness to return to work. Eastern Die Company,
142 NLRB 601. I find the backpay period herein is tolled and terminated as of the
date Respondent's offer was declined, September 2, 1964.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent, as described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the several
States, and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act.
Respondent having discriminatorily laid off Morris D. Smith on September 14,
1963, and having thereafter failed and refused to recall him, I recommend that
Respondent make him whole for any loss of pay he may have suffered by reason of
Respondent's said discrimination, commencing September 14, 1963, and ending on
Respondent's offer of reemployment on September 2, 1964. Said backpay shall be
computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It is also recommended that Respondent be ordered to make available to the Board,
upon request, payroll and other records to facilitate checking of the amount of
earnings due.
7 89-730-6 6-vol 152-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been further found that the Respondent refused to and continues to
refuse to bargain collectively with the Union , and, further , that the Respondent, in
June 1964 , without notice to or consultation with the Union , granted a wage increase,
thereby interfering with, restraining , and coercing its employees , I shall recommend
that Respondent cease and desist therefrom and also, upon request , bargain collectively
with the Union with respect to wages, hours , and other terms and conditions of
employment and embody in a signed agreement , upon request, any understanding
reached, however , nothing herein is intended to require Respondent to vary the
wages, hours, and other conditions of employment heretofore established.
It having been found that the Respondent by threats , promises of economic benefit,
and a wage increase , in August 1963, interfered with, restrained , and coerced its
employees in violation of Section 8(a)(1) of the Act, I shall recommend that the
Respondent cease and desist therefrom.
In view of the nature of the unfair labor practices committed , the commission of
similar and other unfair labor practices reasonably may be anticipated . I shall there-
fore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its 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. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Allied Industrial Workers of America , AFL-CIO, Region #4 , is a labor
organization within the meaning of Section 2 ( 5) of the Act.
3. All production and maintenance employees of Respondent , excluding office
clerical employees , professional employees , guards , and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
4. Since on or about May 20, 1964, the Union has been and continues to be the
exclusive bargaining representative of all employees in the aforementioned appro-
priate unit for the purposes of collective bargaining within the meaning of Section
9(a) of the Act.
5 By refusing , on and after June 1, 1964, to bargain collectively with the above-
named Union , as the exclusive representative of its employees in the aforesaid unit,
and by unilaterally granting a wage increase , in June 1964, without notice to or
consultation with the Union , to the employees in the aforesaid unit , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (5) of the Act.
6. By refusing to bargain with the above-named Union , by threats and promises
of economic benefits, and by granting a wage increase , in August 1963, the Respond-
ent has interfered with , restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act , thereby engaging in unfair labor practices
within the meaning of Section 8 ( a) (1) of the Act.
7. By discriminating with respect to the hire and tenure of employment of Morris
D. Smith, and by failing and refusing to recall him after layoff , as found supra,
hereby discouraging the free exercise of the rights guaranteed by Section 7 of the
Act and discouraging membership in and activities for the above -named labor orga-
nization , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (3) and ( 1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record of the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , I recommend that Roselon Southern , Inc., Crossville,
Tennessee , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of , Allied Industrial Work-
ers of America , AFL-CIO, Region #4, or any other labor organization of its
employees , by discharging , laying off , or refusing to reemploy or recall employees on
layoff, or in any other manner discriminating against them in regard to their hire
and tenure of employment or conditions of employment.
(b) Threatening economic retaliation if any employee engages in organizational
activities.
ROSELON SOUTHERN, INC. 1187
(c) Making promises of benefits , or granting wage increases unilaterally and with-
out notification to or consultation with the Union , for the purpose of discouraging
membership in the Union or support thereof, in a manner constituting a violation of
Section 8 ( a) (1) of the Act.
(d) Refusing , upon request, to bargain collectively with Allied Industrial Workers
of America , AFL-CIO, Region # 4, as the exclusive representative of all its employ-
ees in the following appropriate unit:
All production and maintenance employees of Respondent , excluding office
clerical employees , professional employees , guards, and supervisors as defined
in the Act.
(e) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the right to self-organization , to form labor organizations , to join
or assist the above -named Union , or any other labor organization , to bargain col-
lectively through representatives of their own choosing , and to engage in any other
concerted activity for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activity.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request , bargain collectively with Allied Industrial Workers of America,
AFL-CIO, Region #4, as the exclusive bargaining repersentative of the employees
in the above -described appropriate unit with respect to rates of pay , wages, hours of
work, and other terms and conditions of employment , and, upon request, embody
in a signed agreement any understanding reached.
(b) Make Morris D. Smith whole for any loss of pay he may have suffered by
reason of Respondent 's discrimination against him in accordance with the recom-
mendations set forth in the above section entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(d) Post at its place of business in Crossville , Tennessee , copies of the attached
notice marked "Appendix ." 17 Copies of said notice, to be furnished by the Regional
Director for Region 10, shall , after being duly signed by the Respondent, be posted
by it immediately upon receipt thereof, and be maintained for 60 consecutive days
thereafter , in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
such notices are not altered , defaced, or covered by any other material.
(e) Notify the Regional Director for Region 10, in writing , within 20 days from
the date of the receipt of this Trial Examiner 's Decision , what steps Respondent has
taken to comply herewith.
It is further recommended that unless, within 20 days from the date of the receipt
of the Trial Examiner 's Decision , the Respondent shall notify the said Regional
Director , in writing , that it will comply with the foregoing Recommended Order,18
the National Labor Relations Board issue an Order requiring Respondent to take
the aforesaid action.
It is further recommended that the allegations of the amended complaint in Case
No. 10-CA-5500, paragraphs 10 and 11 be dismissed.
171n 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 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," will be substituted for the words "a Decision
and Order."
18 In the event that this Recommended Order Is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL, upon request , bargain collectively with Allied Industrial Workers
of America , AFL-CIO, Region #4 as the exclusive bargaining representative
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of our employees in the appropriate unit described below, concerning rates of
pay, wages , hours of work , and other terms and conditions of employment, and
we will , upon request , embody in a signed agreement any understanding reached.
The bargaining unit is:
All production and maintenance employees of Respondent , excluding
office clerical employees , professional employees , guards, and supervisors
as defined in the Act.
WE WILL NOT discourage membership in, or activities on behalf of, Allied
Industrial Workers of America, AFL-CIO, Region # 4, or any other labor
organization of our employees , by discharging , laying off , or refusing to reemploy
or recall employees on layoff, or in any other manner discriminating against them
in regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT threaten economic retaliation if any employees engage in orga -
nizational activities.
WE WILL NOT interfere with , restrain , or coerce our employees in the exercise
of rights guaranteed in Section 7 of the Act , by granting or promising economic
benefits, or by unilaterally changing the terms or conditions of their employment,
provided , however, that nothing in the "Recommended Order" requires us to vary
or abandon any economic benefit or any term or condition of employment which
has heretofore been established.
WE WILL NOT unilaterally grant a wage increase without notice to or con-
sultation with the Union above named.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of the rights to self-organization , to form labor orga-
nizations , to join or assist Allied Industrial Workers of America, AFL-CIO,
Region #4, or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in any other concerted
activities for the purpose of collective bargaining or mutual aid or protection,
or to refrain from any or all such activities.
WE WILL make Morris D. Smith whole for any loss of pay suffered as a result
of the discrimination against him.
All our employees are free to become, remain , or refrain from becoming or
remaining , members of a labor organization of their own choosing.
ROSELON SOUTHERN, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 528
Peachtree-Seventh Building , 50 Seventh Street NE., Atlanta , Georgia, Telephone No.
876-3311 , Extension 5357, if they have any question concerning this notice or compli-
ance with its provisions.
Phelps-Dodge Copper Products Corporation and United Auto-
mobile, Aerospace , and Agricultural Implement Workers of
America, AFL-CIO . Case No. 13-CA-6600. June 4, 1965
DECISION AND ORDER
On February 18, 1965, Trial Examiner Ivar H. Peterson issued his
Decision 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 and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
152 NLRB No. 119.