Schoenfeld Cordage Co., Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1963

143 N.L.R.B. 117 (N.L.R.B. 1963)

SCHOENFELD CORDAGE CO., INC. 1 17
WE WILL NOT discourage membership in Retail Store Employees Union,
Local 1099, Retail Clerks International Association , AFL-CIO, or any other
labor organization, by discharging any of our employees , or in any manner
discriminating in regard to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT directly, or by implication, threaten employees with the with-
drawal of existing privileges or with other forms of reprisals because of their
union membership or activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to form organizations,
to join or assist the above -named or any other labor organization , to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities , except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer to Louise Crain and Judith Miller immediate and full re-
instatement to their former or a substantially equivalent position , without
prejudice to seniority and other rights and privileges , and make them whole
for any loss of pay suffered as a result of the discrimination against them.
SUPEREx DRUGS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
SUPEREx DRUGS OF KENTUCKY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati , Ohio, 45202, Telephone No. Dunbar
1-1420, if they have any question concerning this notice or compliance with its
provisions.
Schoenfeld Cordage Co ., Inc. and Leonard L . Eythell , Curtis C.
Meeker , Leo W. Eythell , James Chappel , Belton Brown, Jr.,
and Leo Smothermon . Cases Nos. 23-CA-1508-1,23-CA-1508-2,
23-CA-1508-3, 23-CA-1508-4, 23-CA-1508-5, and 23-CA-1508-6.
June 26, 1963
DECISION AND ORDER
On April 22, 1963, Trial Examiner Robert E. Mullin issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
143 NLRB No. 12.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate Report. Thereafter, the Respondent i filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
i The Respondent Employer's request for oral argument before the Board is hereby
denied as the record, the exceptions, and brief adequately present the issues and positions
of the parties.
2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Rodgers, Fanning,
and Brown].
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Rela-
tions Act of 1947, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act,
was heard before Trial Examiner Robert E. Mullin in Houston, Texas, on Febru-
ary 5, 1963, pursuant to due notice to all parties The complaint, issued by the
General Counsel of the National Labor Relations Board, and based on charges
duly filed and served, alleged that the Respondent had engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act. In its answer, duly filed, the
Respondent conceded that it was engaged in commerce within the meaning of the
Act, but it denied having committed any unfair labor practices.
At the hearing all parties were afforded full opportumty to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, and to argue orally
The parties waived oral argument. Subsequent to the hearing, helpful and com-
prehensive briefs were submitted by both the General Counsel and the Respondent.'
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with its principal office and place of
business in the city of Houston, Texas, where it is engaged in the wholesale distribu-
tion of cordage, steel, and wire products. During the 12 months preceding the
hearing, a representative period, the Respondent purchased and had shipped to its
warehouse in Houston, from points outside the State of Texas, goods and materials
valued in excess of $50,000. During this same period, the Respondent made sales
of goods directly outside the State of Texas valued in excess of $50,000. Upon
the foregoing facts, the Respondent concedes, and I find, that Schoenfeld Cordage
Co., Inc., is engaged in commerce within the meaning of the Act.
II. THE CHARGING PARTIES INVOLVED
No labor organization is involved in this matter. The charges herein were filed
by six individuals, all enumerated in the caption, who were employees of the Re-
'In addition to its brief, the Respondent also submitted an extensive set of proposed
findings of fact and conclusions of law. These have been fully considered They are
adopted only to the extent that they are consistent with the findings and conclusions set
forth hereinafter in this report.
SCHOENFELD CORDAGE CO., INC. 119
spondent at the time of the events which gave rise to this proceeding . Whether
they remained employees within the meaning of the Act is an issue in this case
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent in the conduct of its business , during the period in question,
employed only a small complement of workers. These were divided into two
groups. One, the warehouse employees , approximately eight in number , worked
in what was known as the steel department and the twine and nail department. The
other group of employees , about six in number , was made up of over-the-road
drivers in the Respondent 's trucking operation . The latter were engaged in long-
distance hauling of cordage and steel products to the employer's customers. Ralph
Pennington was the foreman in charge of both groups of employees . Harold A.
Hespelt was the general manager for all of the Respondent 's operations . The six
individuals who filed the charges in this case were working in the warehouse at
the time of the dispute which gave rise to the present proceeding.
Leonard Eythell, one of the aforesaid warehouse employees, testified that after
work on the evening of October 3, 1962, he, Curtis C. Meeker, Leo Eythell, James
Chappel, Belton Brown, Jr., and Leo Smothermon, all six of whom were coworkers,
met and discussed the course of action they should follow in seeking a wage raise.
The same group met again the next evening and at that time decided that on the
following morning they would ask Foreman Pennington for a pay increase of 10
cents an hour. Leo Eythell wrote out the wage request as to each of the six men
on a piece of paper and Leonard Eythell, his brother, was designated by the group
as the spokesman. Prior to reporting for work on October 5, the six employees
assembled at a restaurant near the Respondent 's premises where they reviewed
briefly their plan to demand a wage raise from the foreman and then proceeded
to the warehouse where they were scheduled to start work at 8 a.m.
The group arrived at the warehouse at 7:45 a.m. The employees changed into
their work clothes and immediately thereafter went out into the warehouse. Leonard
Eythell then went to Pennington's office. There he told the foreman that the
employees had been discussing a raise and had formulated their request on a slip
of paper which Eythell then handed to Pennington. According to the employee,
the foreman looked at the paper and then stated, "This is out of the question, who
wrote this?" When Eythell declared that he was the writer, Pennington said, "Well,
let's go out and have a talk with these fellows." The two thereupon proceeded to
the warehouse where Pennington showed the paper to the five other employees and
demanded, "Whose idea was this?" 2 When no one stepped forward to answer
his question, the foreman then asked each employee if he would stay with the
Company at his current wage. Each, in turn, stated that he would do what the
others did. In asking Curtis Meeker this question Pennington suggested that this
employee had been the ringleader in the movement. Meeker, however, denied that
he was responsible.3 At this point, according to Pennington, he told the employees,
"Well, if that is it, that is it, that is all I can do." According to the foreman,
several in the group then said, "Let's go," and thereupon the six men left the
warehouse. Leonard Eythell testified, however, that after determining that the
employees would stay together, the foreman abruptly ordered them to leave with
the statement, "Well . you fellows just go, go, get out of here." Eythell's testi-
mony was corroborated by Perry Emberton, a witness called by the Respondent.
Emberton was a truckdriver who was present during the confrontation of the em-
ployees by Pennington. According to him, Pennington concluded the meeting with
the statement, "Well, I can't help you. I have tried and I can't help you . . . .
If this is the way it's going to be, you will just have to go . It is my conclusion
that the testimony of Eythell and Emberton in this connection is the more accurate
as to the manner in which the employee conference with Pennington was terminated.
The six employees left the premises shortly after 8 a.m. that Friday morning.
This was the regular payday at the Respondent's warehouse and the employees
customarily received their checks at noon on Friday. At approximately that
time on October 5, the six employees here involved returned to the company
premises and reported to Pennington's office. There Pennington handed each one
his final check with no comment other than the statement that if anyone was dis-
2 This quotation and the one in the preceding sentence are from Pennington ' s testimony.
3 There was no dispute in the testimony in this connection . Eythell testified that
Pennington stated to Meeker , "I believe you are the one behind all this mess I think you
started it." Pennington conceded, "I asked him [Meeker] if it was his idea . . He
said no, he didn't have nothing to do with it."
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
satisfied with the amount the employee would have to discuss it with the book-
keeper. Upon receiving their checks the employees then departed.
On October 6, the following morning, the Charging Parties concluded that they
would abandon all efforts to secure a raise and that instead they would seek rein-
statement . They met once more at the restaurant near the warehouse and again
appointed Leonard Eythell to bring their request to Pennington . According to
Eythell , he immediately went to the warehouse where he told Pennington that
the men had given up their request for a raise and were ready to go back to work
at their old rate. Eythell testified credibly that Pennington rejected their offer with
the statement , "Well . I have got a lot of work around here to be done .. .
I need you guys. We have work over at the other yard, steel to be moved here, .
but I can't hire you back and I know Harold [Hespelt] wouldn't have you back."
According to Pennington , when Eythell told him that the men were ready to return
at their old pay scale, his response was, "I couldn 't hire you right now ." On the
other hand, in a prehearing affidavit the foreman stated that on October 5, "1 didn't
fire them because I needed them ." On cross-examination , he explained that he did
not reemploy at least some of the six employees on October 6, because all of them
had "resigned or quit." 4 None of the six individuals who sought reinstatement
has ever been reemployed.
The foregoing findings represent , unless otherwise noted , the mutually corro-
borative accounts of the events of October 5 and 6, as related by both the witnesses
for the General Counsel and the Respondent . In only one significant respect did
the testimony of Pennington differ from that of the employees. To that conflict
we will now turn.
Foreman Pennington testified that at the time when Leonard Eythell first came
to him on the morning of October 5, the employee stated that if he and his coworkers
did not get a raise they would quit. General Manager Hespelt testified that about
8:45 that morning Pennington told him that the warehouse employees had come
to him with a demand for more money and had declared that if they did not get it
"they were going to quit " Leonard Eythell denied that he made any such
declaration either during his conversation with Pennington or at any other time.
Apart from Hespelt, none of the Respondent 's witnesses gave any support to Pen-
nington 's testimony that Eythell told him the employees would quit unless the
Company acceded to their demand. Emberton, a witness for the Respondent who
testified that he was present when the foreman met with the six employees , did not
testify that Eythell or any of the other members of that group made any such state-
ment. James Frazier, a warehouse employee, was on vacation on October 5 He
testified that Pennington telephoned him that morning to ask that he return to work
immediately because the other warehouse employees had "walked out" on him .5
More significant than any of the foregoing, however, was the testimony of Eva-Marie
Andres, bookkeeper for the Respondent. She testified that when she reported for
work about 8 a m. on October 5, Pennington came to the office and told her that
there would be no warehouse labor that day because all of the employees had
walked out. According to this witness, about 10 to 15 minutes later Pennington
returned to the office and told her to pay off everybody in the warehouse She
testified that upon inquiring as to the reason for this action, Pennington told her
"Well, these boys wanted a raise, and I couldn't give it to them, so they all walked
out." She further testified that later in the day she asked General Manager Hespelt
whether he would take any of the warehouse employees back and he replied, "No,
no, definitely not . They walked out and they will stay out." According to
Miss Andres, the following morning after Eythell had come to see Pennington, she
again asked Hespelt if be would reconsider taking back any of the men and he
answered, "No, . he wouldn't even think about it . . . be just wouldn't have
anybody back." This same witness testified that on an occasion about a month
later, and after the Labor Board had begun its investigation of the charges, she
asked Hespelt if he would ever reemploy Leo Eythell and James Chappel, both of
whom were older employees. According to Miss Andres, the general manager told
her that if required he "would take those two boys back, but he would make it
hard and impossible for them so they would quit within a week."
Miss Andres specifically denied that at any time during the above period had
Pennington told her that the warehouse employees quit because they were denied
a raise She further testified, "He just stated that they walked out because they
didn't get a raise." Miss Andres was a persuasive witness and her testimony was
neither contradicted nor denied . On the basis of the foregoing , it is my conclusion
s This quotation is from Pennington ' s testimony
The quotation is from Frazier's testimony
SCHOENFELD CORDAGE CO., INC. 121
that at no time on October 5 did Leonard Eythell or any of the other Charging
Parties tell Pennington that if they did not get a raise they would quit. It is my
further conclusion that after Pennington had polled these six employees as to their
individual views and discovered that they planned to stay together he ordered them to
leave the premises and then had the bookkeeper prepare final paychecks for all of
them.
The General Counsel alleges that after the six Charging Parties banded together
to seek a raise, they collectively left the Respondent 's premises on October 5 and
upon their return the next day Pennington discriminatorily refused to rehire or re-
employ them . The Respondent contends that these employees voluntarily quit
when Pennington was unable to grant them a wage increase and that when they
returned on the following day it was under no obligation to rehire them.
I have already found that on October 5, the six employees did not threaten to
quit unless their demand was met, nor did they voluntarily terminate their employ-
ment. In banding together for the purpose of securing a wage increase they were
engaged in protected concerted activity. When Pennington denied their request
for a pay raise and ordered them off the premises they left together and by their
collective action became economic strikers Arthur J. Wiltse, d/b/a The Ann Arbor
Press, 85 NLRB 58, 61-63, enfd ., 188 F . 2d 917 (C.A. 6).6 In that role they were
entitled to reemployment upon their unconditional request for reinstatement if their
jobs were still open . N.L.R.B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C.A. 9);
N L.R B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-347. The Respond-
ent contends that in October its business had already gone into a seasonal decline, so
that when the employees returned on October 6 it had no further need for them.
At the hearing the Respondent also set forth numerous objections that it had to
each of the individual employees which allegedly served as added bases for not
reemploying them . The facts with respect to these issues will now be considered.
On October 5, 1962, the Respondent had eight warehouse employees. Six of
these were the complainants herein. James Frazier and Ed Frost were the other
two. Frost had been hired only a few days before 7 and was not at work on the
morning of October 5 He returned that afternoon. Frazier was on his vacation
on October 5 and was scheduled to be off for another week Pennington called
him back to work immediately after the complainants left. The foreman testified
that on Friday he kept the warehouse operating with the help of Frazier, Frost,
and some of the over-the-road drivers. Thereafter, the Respondent hired several
replacements .i About a week after October 5, one James T. Smith was hired and
went to work in the warehouse. Approximately 1 week later, Smith quit.9 On
or about October 29 Curley Lee Brown was hired to work in the warehouse and on
or about November 14 Elisha Outlaw was hired for similar employment. In
mid-January 1963, Perry Emberton left the trucking department and went to work
in the warehouse.1° On or about January 29, Jessie Lee Brown, another over-the-
road driver, was transferred to the warehouse Pennington testified that at the
time of the hearing the Respondent had five men working in the warehouse.ii
He also testified that during the period subsequent to October 5, 1962, the Respond-
ent occasionally used certain contract workers on a day-to-day basis for warehouse
assignments . Pennington secured these additional workers from an organization
known as Labor Pool, Inc. Pennington conceded that one such individual worker
supplied by Labor Pool had been used in the Respondent's warehouse almost con-
stantly for a month and that another Labor Pool employee had been there almost
as long.
During the fall of 1962 the Respondent was engaged in the process of moving
its warehouse operations from one location in Houston to another point several
miles away. Hespelt testified that by October 5 the move was almost completed
and that for this reason he and Pennington were preparing to reduce the work
force in the warehouse and would have done so regardless of whether the six
O The original charges alleged that Pennington discriminatorily terminated them The
complaint , however, contained no such allegation I, 'therefore, make no finding in that
connection.
7 Pennington testified that Frost was hired on October 1.
8 The findings as to the hiring of replacements is based on Pennington 's testimony.
9 The Respondent contends that Smith was hired as truckdriver Pennington conceded.
however , that Smith worked only in the warehouse throughout the course of his employ-
ment Under these circumstances he must be considered a warehouse employee during his
brief tenure . I so find
10 He remained there for a few weeks and then quit the Respondent ' s employ
11 These were Frazier, Curley Lee Brown , Outlaw, Jessie Lee Brown, and Frost.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees had left on that date. This testimony, however, was not supported by
other evidence in the record. Pennington, for example, conceded that in Octo-
ber he had the same number of men working in the new warehouse as in the old
warehouse befor the move and that the new facilities were substantially larger
than the old. Furthermore, on October 1, the Respondent hired Ed Frost as a
new employee in the warehouse. If the Company had been planning a substantial
layoff of workers early in October it would seem most unusual for it to hire a
new employee immediately before it began such a reduction in force.
The Respondent also contends that in the fall of the year it customarily experi-
ences a seasonal decline which necessitates a layoff in the warehouse, so that the
employees in question would soon have been off the payroll in any event. This
contention was not borne out by the record. Leonard Eythell, an employee for 3
years, testified that he had never experienced a general layoff. He further testified,
credibly and without contradiction, that in the fall of 1961 only one member of
the warehouse crew was laid off for lack of work and that this individual was off
for only 1 week.12 Moreover, in this connection, Pennington conceded that dur-
ing the fall and winter of 1961 and 1962, no warehouse employee was actually
taken off the payroll and no benfits of any employees were canceled.
The Respondent also contends that the need for a layoff was great because it
had been operating at a loss throughout the calendar year 1962. It is true that
the Respondent was losing money. Fiscal records offered by the Respondent
established the fact that for the first 8 months of 1962, the Company had lost over
$13,000. On the other hand, Andres, the company bookkeeper, testified that
business was about the same in the fall of 1961 as it had been in 1962. Her testi-
mony in this regard was not disputed by any witness for the Respondent. Further-
more, in 1961, when the Company had also operated at a loss,13 this fact had not
compelled the Respondent to effectuate a general layoff.
The Respondent offered considerable testimony as to alleged deficiencies of each
of the six Charging Parties. Thus, Pennington testified that Leonard Eythell and
Belton Brown were not "dependable," James Chappel made many mistakes, Leo
Smothermon "didn't follow orders," and Curtis Meeker had a high accident rate.
Of the entire group, Pennington testified that only Leo Eythell was a good worker.
Pennington conceded that on October 6 he would have reemployed Leo Eythell
had it not been for the general manager's disapproval. According to Pennington,
"Hespelt suggested that I didn't [rehire Eythell] and he [Hespelt] is the manager."
In a prehearing affidavit, dated October 30, 1962, Pennington averred, "If it was up
to me I would hire Leo Eythell back, but Mr. Hespelt won't let me. I wouldn't
hire Leonard [Eythell] back because I think he was the one who caused all the men
to quit." In this same affidavit Pennington made no mention of any other reasons
for refusing to rehire Leonard Eythell or any of the other employees involved.
Perry Emberton, a witness for Respondent, testified that about a week after October 5,
he was present during a conversation between Pennington and one of the truckdrivers
in which the foreman stated that the six employees had "hurt him and done him
dirty when they walked out and left him in a bind." In the light of the foregoing, it
is my conclusion, and I find, that the numerous alleged deficiencies and other un-
desirable characteristics in the six employees about which Pennington and Hespelt
testified at the hearing were all afterthoughts which did not occur to these super-
visors until long after October 6. Lastly, in this connection, it is relevant to note
that at the hearing Hespelt was asked why the Respondent had not called back any
of these employees when it began hiring new warehouse workers late in October.
To this question, the general manager answered, "Well, I figure this way, the men
were dissatisfied. Otherwise they wouldn't have left. And they hadn't been back
and said anything to Joe personally or discussed it with him . . . " Of course, as
found above, on October 6, Leonard Eythell, on behalf of all six of the men, had
called upon Pennington and stated that all of them were willing to return to work
immediately at their old rate of pay.
On the basis of the foregoing, it is my conclusion that the General Counsel has
established that the Respondent's failure on October 6 and thereafter to reemploy
the six employees here involved was not due to lack of work, a seasonal decline in
business, the Company's financial condition, or any deficiencies in the work habits
of the individual men. On October 6, when Leonard Eythell sought reinstatement
for himself and his coworkers, Pennington told him that, although there was work
' This was Rex Short.
13 The Respondent had been operating at a loss for several years, dating to a time In,
1960 when a corporate official was found guilty of having embezzled some $152,000 from
the corporation.
SCHOENFELD CORDAGE CO., INC. 123
for them, "Harold [Hespelt] wouldn't have you back." About a week later Penning-
ton told one of the truckdrivers that the six employees "had hurt him and done him
dirty when they walked out." In his affidavit, Pennington conceded that he would
not rehire Leonard Eythell "because I think he was the one who caused all of the
men to quit." On October 5 and thereafter General Manager Hespelt stated to
Andres, the bookkeeper, that the six employees "had walked out and they will stay
out," that "he just wouldn't have [any of them] back," and that even if he were
compelled to reemploy Leo Eythell and James Chappel he "would make it hard and
impossible for them so they would quit within a week." As found earlier herein,
the course of conduct engaged in by these six employees was protected concerted
activity. When they returned on October 6 to seek reemployment their jobs had
not been filled. On this record, and on the findings set forth above, it is my con-
clusion that they were denied reinstatement because they had engaged in protected
concerted activity. Accordingly, I find that by refusing to reemploy Leonard L.
Eythell, Curtis C. Meeker, Leo W. Eythell, James Chappel, Belton Brown, Jr., and
Leo Smothermon on October 6, 1962, and thereafter, the Respondent violated Sec-
tion 8(a) (1) of the Act. Southern Pine Electric Cooperative, 104 NLRB 834, 835,
enfd. 218 F. 2d 824 (C.A. 5), cert. denied 350 U.S. 830; N.L.R.B. v. Kennametal,
Inc., 182 F.2d 817 (C.A. 3).14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases as provided in the Recom-
mended Order below, which I find necessary to remedy and to remove the effects
of the unfair labor practices and to effectuate the policies of the Act.
Having found that on October 6, 1962, the Respondent discriminatorily refused to
reemploy Leonard L. Eythell, Curtis C. Meeker, Leo W. Eythell, James Chappel,
Belton Brown, Jr., and Leo Smothermon, I will recommend that the Respondent
offer them immediate and full reinstatement, without prejudice to their seniority
or other rights and privileges, and make them whole for any loss of earnings that
they may have suffered from the aforesaid date to the date of the Respondent's
offer of reinstatement. The backpay of the foregoing employees shall be computed
in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB
289, with interest computed in the manner and amount prescribed in Isis Plumbing
& Heating Co., 138 NLRB 716. I will also recommend that the Respondent be
required to preserve and upon request make available to the Board or its agents,
payroll and other records to facilitate the computation of backpay due.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act
2. By banding together for the purpose of seeking a wage raise from the Re-
spondent the Charging Parties were engaged in protected concerted activity
3. By discriminatorily refusing to reemploy Leonard L. Eythell, Curtis C. Meeker,
Leo W. Eythell, James Chappel, Belton Brown, Jr., and Leo Smothermon, thereby
-discouraging protected concerted activity, the Respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, and in so doing, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
"The complaint did not allege a violation of Section 8(a) (3) of the Act Whether the
,discriminatory refusal to reemploy is found to be a violation of Section 8(a) (3) or of
Section 8 ( a) (1), the Board has held that the same remedy is necessary to effectuate the
policies of the Act. Elwood C. Martin, et at, a co -partnershop d/b/a Nemec Combustion
Engineers , 100 NLRB 1118 , 1119 , enfd . 207 F. 2d 655 (C.A. 9 ), cert denied 347 U.S. 917.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby recommend that the Respondent, Schoenfeld
Cordage Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging protected concerted activity on the part of its employees, by
discriminating in regard to their hire, tenure, or any other terms or conditions of
employment.
(b) In any other manner interfering with , restraining , or coercing its employees
in the exercise of the right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to Leonard L. Eythell, Curtis C. Meeker, Leo W. Eythell, James
Chappel, Belton Brown, Jr., and Leo Smothermon immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudices to
their seniority or other rights and privileges, and make them whole in the manner
set forth in the section of the Intermediate Report entitled "The Remedy."
(b) 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 amounts of backpay due.
(c) Post at its warehouse in Houston, Texas, copies of the attached notice
marked "Appendix." 15 Copies of such notice, to be furnished by the Regional
Director for the Twenty-third Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps the
Respondent has taken to comply herewith.16
Is In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice. In the further event that the Order be enforced by a decree of
a United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order."
16 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to reemploy or otherwise discriminate against any em-
ployee because of his having engaged in protected concerted activity.
WE WILL offer Leonard L. Eythell, Curtis C. Meeker, Leo W. Eythell,
James Chappel, Belton Brown, Jr., and Leo Smothermon immediate and full
reinstatement to their former or equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any loss
of pay suffered as a result of the discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or coerce any
employees in the exercise of the right to self-organization, to join or assist any
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
RED BALL MOTOR FREIGHT, INC. 125
collective bargaining or mutual aid or protection , or to refrain from any and
all such activities.
SCHOENFELD CORDAGE CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify any of the above -named employees if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue , Houston, Texas , 77002, Telephone No.
Capitol 8-0611 , Extension 271, if they have any question concerning this notice or
compliance with its provisions.
Red Ball Motor Freight, Inc. and General Drivers , Warehouse-
men and Helpers Local Union No. 968 ; Dallas General Drivers,
Warehousemen and Helpers , Local Union No. 745; Truck
Drivers and Helpers Local Union No. 568, all affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case No. 23-CA-
1435. June 26, 1963
DECISION AND ORDER
On March 5, 1963, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Intermedi-
ate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
143 NLRB No. 32.