Southern Materials Co., Inc. of Norfolk

National Labor Relations Board - Board Decisions

Nov 18, 1963

145 N.L.R.B. 28 (N.L.R.B. 1963)

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to engage in other concerted activities for the purpose of collective bargaining
or other mutual air or protection, or to refrain from any such activities.
PACKERS HIDE ASSOCIATION, 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, 1200
Rialto Building, 906 Grand Avenue, Kansas City 6, Missouri, Telephone No. Balti-
more 1-7000, Extension 2732, if they have any question concerning this notice or
compliance with its provisions.
Southern Materials Company, Incorporated, of Norfolk and
United Industrial Workers of North America of the Seafarers
International Union of North America, Atlantic, Gulf, Lakes,
and Inland Waters District, AFL-CIO and Inland Boatmen's
Union of the Seafarers International Union of North America,
Atlantic, Gulf, Lakes, and Inland Waters District, AFL-CIO
and Teamsters Local 822, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America. Cases Nos. 5-CA-2196 and 5-RC-3852. November
I8, 1963
DECISION AND ORDER
On June 10, 1963, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
He also found 'that the Respondent had not engaged in other unfair
labor practices and recommended that the complaint be dismissed as
to them. Thereafter, the General Counsel, the Charging Party, and
the Respondent filed exceptions to the Intermediate Report and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Farming, and Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner except as modified below?
1 In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's
findings in which he dismissed certain alleged violations of Section 8(a) (1) of the Act.
2 The Trial Examiner declined to recommend the reinstatement of employee Jack B.
Harris, and limited the award of backpay to 'him for the period from June 9, 1962, the
145 NLRB No. 2.
SOUTHERN MATERIALS COMPANY, INC., OF NORFOLK
ORDER
29
The Board hereby adopts as its Order the Recommended Order of
the Trial Examiner I with the following modifications :
Paragraph 1(c) of the Trial Examiner's Recommended Order is
hereby deleted and the following substituted therefor :
In any other manner interfering with, restraining, or coercing
its employees in the exercise of any of the rights guaranteed to
them by Section 7 of the Act.
Paragraph 2(a) is hereby deleted and the following substituted
therefor:
Offer William H. Sawyer and Jack B. Harris immediate and
full reinstatement to their former or substantially equivalent po-
sitions at Richmond and at the Campostella plant at Norfolk,
Virginia, respectively, without prejudice to their seniority and
other rights and privileges previously enjoyed, and make them
whole for any loss of pay they may have suffered by reason of the
discrimination against them, from the date of the discrimination
to the date of a proper offer of reinstatement, the backpay and
interest to be computed in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
The notice is hereby modified by deleting the third indented para-
graph and substituting the following therefor :
date of his discharge , to June 24 , 1962 , the date on which Harris entered Respondent's
truck shop to photograph certain material on the bulletin board. In doing so, the Trial
Examiner concluded that it would be against "public policy" to reinstate Harris because
the evidence indicated the "probability" that Harris had entered the shop after he had
been discharged to manufacture evidence that Respondent had covered a Board election
notice with company propaganda leaflets, in order to use this evidence as a basis for
setting the election aside in the event the Union lost. We do not believe that mere
"probability " that Harris entered the shop for this purpose is a sufficient basis for deny-
ing reinstatement to him. Indeed , we are no more justified in visiting such disability on
Harris than we would be in finding the Respondent , notwithstanding its strong and open
antiunion sentiments , violated Section 8 ( a) (1), merely because there exists , as the Trial
Examiner found, a "strong suspicion " that someone in management may have covered the
official notice . The fact remains that, with respect to this incident , the evidence in the
record does not point conclusively one way or the other . Members Fanning and Brown
shall therefore modify the Trial Examiner 's Recommended Order accordingly , and shall
order Harris ' reinstatement with backpay to the date of his reinstatement . While other-
wise in agreement with his colleagues , Member Leedom would adopt the Trial Examiner's
recommended remedy as to Harris . However, unlike the Trial Examiner , he would do so
because Harris secretly entered the Respondent 's plant during the night to obtain evidence
against Respondent . This misconduct by Harris , after his discharge , demonstrated that
he was not trustworthy and reflected on his desirability as an employee. Member Leedom
therefore finds that it would not effectuate the policies of the Act to reinstate Harris or
to award him backpay for any period beyond the date of his misconduct.
3 The first paragraph of the Trial Examiner 's Recommended Order is hereby amended
by substituting the following paragraph:
Upon the entire record in these cases , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Southern Materials Company, Incorporated, of Norfolk , its officers,
agents, successors , and assigns , shall:
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of any of the rights guaran-
teed to them by Section 7 of the Act.
The notice is further modified by deleting the paragraph which
begins, "WE WILL offer William H. Sawyer .. " and substituting
therefor the following :
WE WILL offer William H. Sawyer and Jack B. Harris im-
mediate and full reinstatement to their former or substantially
equivalent positions at Richmond and at the Campostella plant at
Norfolk, Virginia, respectively, without prejudice to their senior-
ity or other rights and privileges enjoyed, and we will make whole
William H. Sawyer and Jack B. Harris for any loss of pay suf-
fered as a result of our discrimination against them.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issues in this case are whether Respondent , Southern Materials Company,
Incorporated , of Norfolk,' (1) by various interrogations of and other remarks to
employees , interfered with , restrained , and coerced them in violation of Section
8(a)(1) of the National Labor Relations Act, as amended , 29 U.S.C. Sec. 151,
et seq. (herein called the Act), discharged one employee , and transferred and then
constructively discharged another, because said employees had affiliated with United
Industrial Workers of North America and/or Inland Boatmen's Union, both affiliated
with Seafarers International Union of North America, Atlantic, Gulf, Lakes, and
Inland Waters District , AFL-CIO (herein called the SIU), in violation of Section
8(a)(3) of the Act, and (2) by the above and other conduct has materially affected
the results of an election held June 28, 1962, in Case No. 5-RC-3852, to the extent
that such election should be set aside. These issues arise on a complaint issued
December 6, 1962, by the Regional Director of the Board for the Fifth Region,2 as
amended at the hearing, an order of the Board dated January 11, 1963, in Case No.
5-RC-3852, directing a hearing on certain objections of the SIU to conduct affecting
the result of said election , an order of said Acting Regional Director dated January 15,
1963, consolidating the issues raised by said objections to election with the issues
raised by the complaint in Case No. 5-CA-2196, and the answer of Respondent
denying the commission of any unfair labor practices as alleged in said complaint.
Pursuant to notice , a hearing was held before Trial Examiner Eugene F. Frey at
Norfolk, Virginia, on various dates between March 12 and April 17, 1962. All
parties were present and represented by counsel, except Teamsters Local 822, and
were afforded full opportunity to be heard , to introduce relevant evidence , to present
oral argument , and to file briefs. All parties present waived oral argument , but have
filed written briefs with me.
Upon a consideration of the entire record herein, and from my observation of
the witnesses on the stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in the business of producing , selling,
and distributing sand , gravel , stone, and ready-mix concrete , which business it
conducts at various locations within the Commonwealth of Virginia . In a repre-
sentative 12-month period Respondent has a direct inflow of materials valued in
excess of $50,000 which it buys outside Virginia and has shipped directly to its
various places of business within the State from points outside. I find on these facts
1 The name of Respondent appears as amended at the hearing.
2 The complaint was issued after Board investigation of original and amended charges
filed by SIU on June 21 , August 10, and December 5, 1962, respectively.
SOUTHERN MATERIALS COMPANY, INC., OF NORFOLK 31
that Respondent is, and at all material times herein has been, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
The Union named in the caption is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The union campaign, and representation case
The Union began an organization campaign about February or early March 1962
among Respondent's employees at its Virginia plants, in the course of which it mailed
and distributed campaign literature to employees frequently. Respondent put on a
countercampaign almost from the outset which included distribution of antiunion
propaganda to employees, and antiunion statements and arguments by company
officials and supervisors to them personally, which are discussed more fully below.
On June 4, 1962, the Union filed a petition with the Board in Case No. 5-RC-3852
seeking certification as statutory bargaining representative of the employees. Pur-
suant to a stipulation for certification upon a consent election executed by Respond-
ent and the Union on June 8, 1962, the Board conducted an election on June 28,
1962, which the Union lost. On July 6, 1962, the Union filed timely objections to
conduct affecting the results of the election, which the Regional Director investigated.
His report of December 14, 1962, found disputed questions of fact relating to
alleged coercive promises of benefit, threats of reprisal, and other improper state-
ments by Respondent's agents to various employees, alleged improper covering of
a sample ballot displayed in a plant of Respondent before the election, and the
alleged discriminatory discharge of Jack B. Harris and transfer of William H. Sawyer.
On that report the Board issued its order aforesaid directing a hearing on those issues,
which are now before me in both the representation and complaint cases.
1. Respondent's antiunion campaign
The election was held at 24 plants or facilities of Respondent in Virginia, of which
the following were the scenes of events involved in this case: Richmond Dock Street
plant, Kingsland Reach plant, Dutch Gap plant, Campostella plant at Norfolk, Can-
field Farm plant, Varina Farm, and the Lynchburg plant. During the preelection
campaign Respondent issued periodic letters to employees containing legitimate anti-
union arguments, in answer to numerous campaign leaflets and letters issued by the
Union, and many of its officials and supervisors made such arguments to employees
both in group talks and individual conversations at the above plants. Officials who
engaged in such discussions included Henry C. Hofheimer, president and chairman
of the board of Respondent; Vice Presidents Raymond F. Wingo, Jr., Allen R. Potts,
and Edwin M. Gourley; Secretary Wesley Wright, Jr., and Supervisors Lester C.
Emerson, Henry Holden, LeRoy Havice, and Walter F. Bailey.
The record shows that early in March 1962, Vice President Potts addressed about
40 to 50 employees at Kingsland Reach, who were assembled by Supervisor Lester
C. Emerson. Potts gave the men various legitimate arguments why they did not need
a union. Driver Elbert H. Bennett testified that Potts also said that "there positively
was not going to be any union no matter what happened" and that "anybody that
would go with the Union or he thought was messing with the Union would be dis-
charged." On cross-examination he varied these remarks somewhat, indicating that
he was not sure of the words used but was giving only his impression of what was
said after the lapse of a year. He was vague about the date of the speech and
other details of the event. His credibility is affected also by the fact that he was dis-
charged for cause about April 10, 1962. No other employees at the meeting
testified in support of Bennett's story. Potts and Wright, who were present at the
meeting, categorically denied that Potts made the quoted remarks, as did employee
Coniston Lee Harmon who testified that he heard all speeches Potts made at that
plant. Considering all the circumstances, I conclude that General Counsel has not
sustained the requisite burden of proving that Potts made the quoted remarks, or
that Respondent engaged in any coercive conduct through Potts on this occasion
violating the Act. I shall recommend that the allegations of paragraph 6 of the
complaint be dismissed in this respect.
On or about March 25, 1962, while Bennett was unloading his truck at Campostella,
Emerson approached him and asked what he thought about the Union. Bennett
replied that he thought it would be good for the employees. Emerson then said that
"you should not feel that way about it, because we are good to you. You are doing
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all right as you are. We do not want a union in here, and we are not going to have it"
and that Bennett should "get that in your head, and just forget it." 3 I find Emerson's
interrogation about Bennett's union sentiments coercive and in violation of Section
8(a) (1) of the Act; his other remarks are merely rather blunt but legitimate expres-
sions of antiunion views and preferences.
On or about April 1, 1962, Henry Holden, shop foreman at Campostella, asked
driver Carl L. Everett, Jr., in the machine shop if he got his "union mail." Everett
said he had. Holden then asked, "Did you get your union card, the small card they
sent out, and did you sign it?" Everett said he signed it. On or about April 21,
Holden asked Everett in the shop, in the presence of other employees, if Everett
was having "anything to do with the Union." Everett asked what he meant, and
Holden asked if he signed a card. Everett said he had. Holden then commented
that "the Union is no good for you," and gave reasons for that view. He also asked
Everett if he had attended union meetings. Everett said he had.4 I find that Holden's
interrogation about signing a union card and attending union meetings violated Sec-
tion 8(a) (1) of the Act. On or about May 21, while working with Wilson D. Sawyer,
mechanic at Campostella, Holden asked him if he went to a union meeting a day
or so before. Sawyer denied he had. Holden said that if he had anything to do
with it, he had "better leave it alone." He also asked, "How does Ed Byron know so
much?" and Sawyer said he did not know. The day before, Sawyer had actually
attended a union meeting. In the latter part of May, Holden had a talk with driver
Arland J. Moore at Campostella, in which he asked him if he ever signed a union
pledge card. Moore said he did not. Holden said that if the Union came into the
plant, and Moore was making $2.40 an hour, the hours would be cut and they would
lose about $100 (a week) even if the Union got them $2.50 an hour. Holden also
said the Christmas bonuses and vacations the men received would be cut out, also
possibly the work drivers got in wintertime when not hauling concrete, and their
take-home pay would be lower.5 I find that Holden's interrogation of Sawyer about
attendance at a union meeting, his query of Moore about signing a union card,
and his clear threats to Moore of reduced workhours and loss of various benefits if
the Union came into the plant, were coercive remarks violating the Act.
On a Sunday in the early part of June, crane operator J. C. Bugg visited the
Varina Farm's sandpit near the Kingsland Reach plant while off duty, to give em-
ployee Willie L. West advice on the operation of Bugg's crane, which West was
running that Sunday. The two talked about the operation and also about a hunting
dog, within sight of a foreman. On Monday, Emerson approached West and asked
if Bugg had been encouraging West to sign a card. West replied that if Emerson
was speaking of the Union, Bugg never mentioned it. In this same period, Vice
President Potts and Secretary Wright approached Bugg at his machine one evening
and asked him how he felt about the Union. He replied that he was neutrals
I find that Emerson's interrogation of West and Potts' interrogation of Bugg violated
the Act.
On Thursday following Emerson's interrogation of West, Potts visited Bugg while
he worked on his crane, and said, "What I hear about you is not good." Bugg
replied that he did not know what Potts had heard, but there was much talk about
the Union, and he was still neutral. Potts then said an employee at Norfolk had
been discharged for getting seven pledge cards signed, and had pleaded to get his
job back. He also commented that Bugg would have to get $3.75 an hour in order
to take home as much pay as he was then getting. Bugg agreed, and said he was
not asking for more money, he was satisfied with his job. He also said that he
had given Respondent the best part of his life,7 and "if a person won't fight for
his rights, there is something wrong." He added that he was still neutral, and
8 These facts are based on credited testimony of Bennett, as corroborated in large part
by that of Emerson Testimony of either at variance with the findings is not credited
11 find these facts on credited testimony of Everett, which is corroborated in part by
admissions of Holden that he talked to various employees, giving his own and the
Company's antiunion views, that lie did this at the direction of Respondent, and that the
only admonition he received was that he should not make promises or threats. For these
reasons, and since Everett's versions include legitimate antiunion remarks by Holden,
consistent with his admitted orders, I do not credit Holden's categorical denial of the talks.
6I find these facts on credited testimony of Sawyer and Moore, which is corroborated in
part by admissions of Holden, who recalled having talks with both men, but denies
categorically any interrogation of either. For reasons given above, I do not credit his
denials.
01 find these facts on credited testimony of Bugg and West which is not directly con-
tradicted by Emerson or Potts I do not credit Wright's denial of the second incident.
7 Bugg had been with Respondent over 19 years.
SOUTHERN MATERIALS COMPANY, INC., OF NORFOLK 33
Potts replied, "John, let's keep it that way." 8 I find that Potts' mention of dis-
charge of another employee for procuring members for the Union, in the light of
his comment that the rumors about Bugg were not good, which caused Bugg to
protest that he was still neutral in the campaign, and Potts' suggestion that they
"keep it that way," was a thinly veiled threat that he might be discharged if he en-
gaged in proumon activity, and thus was a violation of Section 8(a) (1) of the Act.
On June 18, 1962, Truck Supervisor LeRoy Havice asked driver Ralph Nichols at
an asphalt plant near Campostella, in the presence of another driver, how Nichols
felt about the Union coming into the plant. Nichols replied that he felt like most
of the other employees, that a union would be a good thing for the workers.
Havice said he did not see where the Union had anything to offer the men.9 I find
that Havice's inquiry as to Nichols' union sentiments was a violation of the Act.
About noon on June 11, 1962, driver Carlton T. Freeman persuaded another em-
ployee on company time to sign a union card at Campostella. About 4 p.m. that
day, Freeman was called into the office of Havice, where Havice asked him, in
the presence of General Truck Superintendent Walter F. Bailey, it he had any
pledge cards in his pocket, that he had learned by telephone from two persons that
Freeman had a pocketful of cards and was getting men signed up for the Union.
Freeman did not deny that he solicited employees, but protested that he had no
cards, and said the supervisors could search him. Bailey then told Freeman that
if he signed anyone else for the Union, or had anything to do with the Union, on
company time, they would discharge him.10 I find that Havice's inquiry as to pos-
session of union cards and mention of the report that he was soliciting for the
Union, the latter remark being designed to draw some response from Freeman on
that subject, were coercive inquiries about his union activities which violated the
Act. However, Bailey's threat of discharge for union solicitation on company time
does not appear to violate the Act, for it amounted to a promulgation and on-the-
spot enforcement of a no-solicitation rule prohibiting use of company time for
other than normal production purposes. The Board has held that such a rule is
presumptively valid in its promulgation and enforcement, which presumption can
be overcome only by clear proof that the rule was unfairly applied by Respondent
so as unreasonably to impede the Union's organizational efforts.ii Neither General
Counsel nor the Union point to any such proof. I therefore recommend dismissal
of the complaint insofar as it alleges that Bailey and Havice illegally threatened an
employee on June 11, 1962.
On or about June 25, 3 or 4 days before election, while crane oiler Richard L.
Shoeber was working on a floating crane at Dutch Gap Island, Superintendent Emer-
son came up to him and asked him if anybody had "converted" him yet. Shoeber
said no. On the day before the election, Emerson called Shoeber at his home and
asked if he knew which way to vote. Shoeber said he did Emerson also asked
"something about your brother-in-law, Harvey Snyder." Shoeber said, "I guess
he is going that way, too." Emerson then gave Shoeber orders about where to
report for work the next morning. Emerson told him the main thing he called
about was to give him orders about reporting. On February 22, 1963, Shoeber had
been scheduled to meet an NLRB attorney at William Sawyer's home to prepare
for trial of this case. On or about February 23, 1963, Emerson asked Shoeber
at the Kingsland Reach location if he had received a telephone call the previous
evening. Shoeber said he did. He then asked if Shoeber had attended the meet-
ing. Shoeber said no, he had to keep an appointment with his doctor. On Satur-
day, March 9, 1963, when Shoeber arrived at Kingsland Reach to work, he told
8 These facts are based on credited testimony of Bugg, as corroborated in large part by
testimony of Potts, who recalled a specific talk on an unidentified date with Bugg in
which they discussed at length the benefits Respondent had given its employees over the
years without a union. As Potts recalled that Bugg made some remarks about his long
service similar to those cited above, but was vague about the rest of the talk, I believe
both men were referring to the same talk. I do not credit Potts' denial of the remark
about the discharge of another employee.
9 The conversation is founded on credited testimony of Nichols . While it is directly
controverted by Havice, also by his broad assertion that he never spoke to any employees
about the Union, I do not credit Havice in light of the admitted activities of other super-
visors and Respondent's deliberate antiunion campaign among the employees
10 These facts are based on credited testimony of Freeman, as corroboiated in part by
admissions of Bailey. Havice did not testify on this.
11 Walton Manufacturing Company, 126 NLRB 697 , 698; Star-Brite Industries, Inc, 127
NLRB 1008, 1010, 1011 ; James Hotel Company, a corporation d/b/a Skirvin Hotel and
Skirvin Tower, 142 NLRB 761.
734-070-64-vol. 145-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emerson he would have to be absent the next Tuesday, March 12 (the day this
hearing started). Emerson asked if he "got one of them things, too," and Shoeber
said yes. Shoeber testified herein under subpena of General Counsel.12 I find that
Emerson's interrogation of Shoeber on the first two occasions were violations of
Section 8 (a) (1) of the Act.
On or about July 2, 1962, Vice President Potts and President Henry C. Hofheimer
addressed a group of 70 to 75 employees in the machine shop at Kingsland Reach.
The meeting was called to permit Hofheimer to tell the employees about a pending
merger of Respondent with Lone Star Cement Company and the problem of ex-
change of Respondent's stock held by many of the employees. At the outset, Potts
referred to and held up a leaflet distributed by the Union the night before which,
among other statements, in effect accused Supervisor Emerson of having forced an
elderly employee to work at a new job under such conditions that he dropped dead
shortly after starting it. Potts said that "anyone who would associate with people
who put out trash like this, I do not want to have anything to do with them, they
can take their lunch boxes and go up the road." Hofheimer then told the men he
supported Potts "100%" in what he had said, and thanked the employees for sup-
porting Respondent by their votes in the election. He then went on to explain
the merger and the stock exchange involved.13 I find that Respondent violated
Section 8 (a)( I) of the Act by Potts' suggestion that employees sympathetic to the
Union should leave Respondent's employ, as he did not want to associate with
such people, because these remarks were a clear coercive invitation to prounion
workers to quit, with the implied threat that they might be discharged if they did not.
I find no violations of the Act in the following incidents for the reasons given
in each:
1. Havice's inquiry of driver James D. Pardon about April 1 at Campostella,
whether he had received any union literature. Nothing else was said by either man.
Since the record shows that employees were constantly receiving literature from both
Company and Union during the campaign, this single, casual question, which did not
relate to Pardon's own actions or sentiments, without more does not appear to be
coercive interrogation.
2. A discussion on May 23 between driver Arland J. Moore and mechanic Thomas
Raiford in the Campostella shop, in which Raiford commented that "I see you are
learning some sense," explaining that Moore had not been attending union meetings
of late, and when Moore asked how he knew this, Raiford's reply that he knew
"just about everybody who attends union meetings." Previously, Moore had tried
in vain to persuade Raiford to join the Union and attend union meetings. Although
Moore said Raiford was a shop foreman at the time, the record shows that on that
date Raiford was still a mechanic working under Shop Foreman Henry Holden and
that, although he had been advised by management on May 15 that he would become
truck supervisor at the Portsmouth, Virginia, facility, he did not start that job until
May 25, 1962. There is no proof that Moore knew of this new appointment, or
that he or other employees had substantial reason to believe Raiford was then
speaking for management. Hence, even if Raiford's remarks be considered a form
of interrogation, they were not binding on Respondent.
3. A speech of Plant Manager Wayne Utley to employees assembled at Lynchburg
the day after the election, in which he stated the Company won, the Union had lost,
and he "would rather that all men who voted for the Union get off the premises,
just get down the road." This comes from testimony of William H. Sawyer, and is
categorically denied by Utley, who testified he was not at work at all that day, as
he was recuperating from a victory party attended by company officials the night
before. Sawyer was vague about the whole talk by Utley, could not remember
what else besides the quoted words was said, except that "nobody in the Union
said a word." No union adherent at that meeting testified to support Sawyer.
Although I have found that other company officials made similar coercive remarks
on July 2 at another plant, these were made under different circumstances reason-
ably indicating the credibility of Board witnesses who testified about them, and
with some corroboration from management. Here, however, since the Company
had just achieved its antiunion purpose after a long, hard-fought campaign, I con-
sider it more likely than not that the victory celebration cited by Utley was actually
12 These findings are made on credited testimony of Shoeber and admissions of Emerson.
Denials and other testimony of Emerson in conflict therewith are not credited in view of
his admissions and other active participation in Respondent's antiunion campaign as
found above.
131 find these facts on credited testimony of Berry, as corroborated in part by admissions
of Potts, Hofheimer, and Coniston L. Harmon. Testimony of the latter three in conflict
therewith is not credited.
SOUTHERN MATERIALS COMPANY, INC., OF NORFOLK 35
staged , and that he attended and had to recuperate at home the next day . I there-
fore credit his story and discredit Sawyer on this point.
4. Supervisor Emerson's query of crane operator Ray M. Berry at Kingsland
Reach on June 1 as to where Bugg, the regular operator , was. Berry told him
that Bugg was absent to get medical treatment for an eye injury he had received
the day before . Emerson then commented , "He is campaigning for the Union,"
to which Berry answered he knew nothing about that. The inquiry as to Bugg's
whereabouts was a natural and legitimate one for the supervisor when he saw a
substitute running the crane ; and his comment about Bugg 's union activity does not
make the inquiry clearly illegal , nor reasonably support an inference that the initial
inquiry was really to learn about Bugg's union activities.
5. Emerson 's discussion with Bugg at Kingsland Reach sometime in June, in
which he remarked that "you know this union mess is coming up, we do not want
any part of it," commented that Bugg and other workers were getting good pay, that
Bugg had long service and was making a good living, and then stating that Bugg
was one of the oldest men in company service and could have a lot of influence
with the employees if he talked to them, to which Bugg replied that he was neutral.
Viewed as a whole, I do not consider that Emerson's remarks were reasonably cal-
culated to advise Bugg that he would continue to work for Respondent and make a
good living there, only if he made antiunion arguments to the men for the benefit of
the Company, or that he might lose his good job if he did not. At most, the remarks
indicate that Emerson was trying to persuade Bugg, as a veteran employee, to use
his influence arising from that seniority with the men in support of Respondent.
I find no direct or implied promise of benefit or threat of reprisal in this.
2. Conduct affecting the results of the election
a. General coercive conduct
The continuous and coercive interrogation of employees, and threats to them of
discharge and other reprisal, voiced by top management officials from the president
on down throughout the whole campaign almost to the date of the election, to the
extent found above, was conduct which clearly tended improperly to coerce em-
ployees in the free exercise of their voting rights, and thus interfered with the conduct
of the election to an extent which requires that it be set aside.14
b. The covering of the sample ballot
In the week before the election Respondent, at the instruction of Board agents,
posted official notices containing sample ballots, usual election rules and instructions
to employees about voting and marking ballots, and a list of the voting places at its
various facilities. One notice was posted prominently in a glass-covered bulletin
board in the truck shop at Campostella adjacent to the supervisors' office. That
board was unlocked and used constantly by management for posting all sorts of
notices, including work orders to drivers (known as "early calls") which they
examined at least once a day to get their work assignments. The official notice was
posted on that board on Saturday, June 23, 1962, by Arthur Rapp, parts manager of
the stockroom in the truck shop, and remained there until after the election. The
sample ballot was printed on the center panel of the notice. Below that panel and
the left panel containing the standard rules governing elections appeared the notation
"This is the only official notice of this election and must not be defaced by anyone."
On the same day that the Board notice was posted, but shortly after, Rapp posted
a company propaganda leaflet on the same bulletin board below and to the right of
the Board notice. This paper was addressed "To Southern Material Employees" and
stated in large red block type underneath "VOTE NO UNION." Then followed
four reasons for voting "no union," beneath which was a succession of red arrows
directing one's attention to the center block of three red blocks denoting voting
spaces, the center block being headed "Neither" and marked with a large red "x."
About 1 p.m. on June 23, Walter W. Blackburn, a supervisor at Campostella, posted
on the board the early call for drivers for Monday, June 25. At that time, and also
when he left work that afternoon, he saw that the Board notice was not covered
by anything, and the "Vote No Union" poster was still below the Board notice.is
"The general principles on this point were recently restated by the Board in Oak
Manufacturing Company, 141 NLRB 1323, and see cases cited therein
"These facts are based on credited testimony of Blackburn, Edwin M. Gourley, and
Arthur Rapp, as corroborated in part by testimony of Jack B. Harris, and documentary
evidence.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No one worked in the truck shop or adjacent supervisors' office on Sunday,
June 24, and the doors to the shop were closed and locked as usual. About 11:30
p.m. that night, Jack B. Harris, an active union adherent and former employee of
Respondent who had been discharged on June 9 under circumstances discussed here-
after, entered the truck shop by opening the garage doors, and took two flashlight
photos of the bulletin board with a Polaroid Land camera. The first photo did
not turn out well because he had to take the picture from an angle due to a truck
parked close to the bulletin board in the area between the board and the door
to the supervisors' office; he took the second photo from a position in the cab of the
truck.is
The second photo shows the center panel of the official notice covered by the
"Vote No Union" poster so that all the ballot is hidden except the three large
blocks at the bottom, two of which name the two unions involved in the election,
with smaller blank squares below each for marking voting choices, and the third
center block marked "Neither Union" with similar voting square below.17
There is a sharp conflict of testimony as to the length of time the Board notice was
covered by the company poster, as shown in the photograph. Harris testified that
he first learned of the coverage from driver Clarence E. Everson when Everson told
employees about it at a union meeting the night of Friday, June 22. Everson testi-
fied that he first saw the condition shown by the picture on that Friday, told em-
ployees about it that night, and saw it continued every working day after that
through Wednesday, June 27, a period of 5 working days. As against this testimony,
Vice President Gourley testified for Respondent that: He noticed the coverage of
the Board notice about 5:30 a m. on June 25 when he came to work and immedi-
ately had the company leaflet removed from the official notice by a clerk. During
that day President Hofheimer advised him that Respondent's attorney had been
notified of the coverage by the Board's Regional Office, and had advised Respondent
that the official notice be uncovered at once. Gourley replied that he had already
done so. He checked the board again that day to see that the notice was still
uncovered, and every day thereafter through the election for the same purpose.
His testimony is corroborated by mechanic Richard A. Jenkins who testified that he
checked the board for notices daily before the election, but never saw the com-
pany leaflet covering any part of the official notice. I credit the testimony of
Blackburn, Gourley, and Jenkins for these reasons:
1. Everson's testimony that he first saw the coverage on Friday, June 22, and
that he told other employees and Harris about it that night, is flatly contradicted by
the clear testimony of Rapp, a witness for the Union, that he first posted the com-
pany leaflet the next day. This not only gives the lie to the testimony of Everson
and Harris on this point, but also throws doubt on Everson's broad testimony that
he saw the coverage every day thereafter through the 27th, a period of 5 working
days. Vice President Gourley testified credibly, and I find, that when he received
the official notices for posting, he distributed them to supervisors for posting, with
strict orders, which he had received from company counsel, to post them at least 3
inches away from any copies of the official notice. Although both the official notice
and company "Vote No Union" leaflet were posted at various other places in
Campostella, this bulletin board was the only point where they were posted near
each other. In light of these facts, and the credible testimony of Blackburn as to
his prompt correction of the coveiage when he saw it on the 25th, I find it hard
to believe that Respondent would deliberately jeopardize the possible effects of
its active antiunion campaign by creating or permitting a flagrant and long-continued
abuse of an official notice posted in the election process. It is also significant that
drivers Ralph Nichols and Sherwood F. Bernard, who testified for the Union on this
subject, could only recall seeing the coverage on 1 or more of 3 days, June 25
through 27: Nichols said he saw it the 25th and 26th, and Bernard the whole 3
days; although Bernard worked every day in that period and checked the board for
work orders every day, he was very vague about doing so on Saturday, the 23d,
and could not recall seeing the coverage that day; he was also vague about the
extent of the coverage on the days he did recall. I am therefore satisfied and find
that Respondent posted the official notice on Saturday, June 23, and the propaganda
leaflet near it the same day; the official notice was not covered at the close of work
that day; when Gourley saw it covered early on the 25th, the next workday, he
1e At discharge, Harris, who was formerly a mechanic working in that shop, had a key
to the garage door like other mechanics, to enable him to open the garage early in the
morning, or return after hours for overtime work. There is no proof that he turned in
the key when discharged.
"These facts are based on uncontradicted testimony of Harris, as corroborated by
testimony of Blackburn and Richard A. Jenkins, and documentary evidence.
SOUTHERN MATERIALS COMPANY , INC., OF NORFOLK 37
had the coverage removed, and the official notice remained uncovered up to and
through the election.
2. I have found that the bulletin board was not locked but accessible to anyone,
and was used continually for posting company notices . Rapp testified credibly
that on Monday or Tuesday , the 25th or 26th, he himself moved the company "Vote
No Union" leaflet from a position below the official notice to another location a
little farther removed.18 The record shows that other notices on this board had
been moved around in this period and that other copies of the official notice posted
elsewhere by Respondent had been defaced by unknown persons, with " X" marked
variously in the three boxes denoting the three choices for voters; when these deface-
ments were discovered by management , the notices were removed , clean copies
posted, and efforts made to guard against further markings . It is clear that Re-
spondent found it impossible to guard all the official notices against defacement,
and it is inferable that many of them were marked up by persons of prounion or
antiunion sentiments . There is no direct proof that anyone during working hours
made any attempt to cover the official notice on the bulletin board as shown on the
Harris photograph . Respondent 's strong and open antiunion sentiments, and the
extent to which its agents overstepped the bounds of free speech and violated the
Act in its preelection conduct as found above , raises a strong suspicion that some-
one at least sympathetic to management and of antiunion sentiment may have se-
,cretly covered the official notice. However , the record shows clearly that the only
person who had both access and oppoi tunity to do that without chance of discovery
was Harris himself. Being a discharged and obviously disgruntled employee, he
admits that he deliberately entered the shop without permission on a nonworkday
at a time when he knew it was dark and unoccupied ,19 and took the picture "because
I wanted to see the Union get in and help the boys ," that he took it "in case they
didn't get in there." This admission makes it clear that he took the picture as a
form of insurance of setting aside the election in the event the Union lost As
I have found that the coverage did not exist the night before and was removed by
Respondent as soon as it was discovered the next day , and considering Harris' ad-
mitted motive , access, and opportunity , a strong inference arises that Harris furtively
entered the shop to cover the official notice himself with the company leaflet, and
take the picture of it in that condition , to manufacture evidence which would be
useful to the Union "in case they did not get in there. " This inference , arising
from proven facts , is at least as strong as any opposing inference that Respondent
caused , or may have had something to do with , the coverage 20
The issue is a close one but, considering all the circumstances pro and con, I must
conclude that the entire record on this point supports no more than a strong suspicion
that Respondent was responsible for the coverage of the official notice, and that the
Union has not sustained the requisite overall burden of proof to show that Re-
spondent caused or permitted the coverage of the official notice to occur or remain
at times and under circumstances which would affect the results of the election21
to A photo of the board made by Respondent on June 29 and put in evidence by the
Union shows the company leaflet , with a corner torn off , posted below the left-hand
panel of the official notice Rapp recalls tearing off a corner in the process of moving the
company poster but is not sure that lie put it in that position
11 Even if he were still an employee at that time , his entry was still unauthorized be-
cause there was no work that Sunday , particularly at 11'30 p in
20 If the coverage existed only (luring nonworking hours and while the plant was closed
on Saturday and Sunday , it is unlikely that any employees saw the condition except those,
if any, who may have been in the plant early Monday when Gourley removed the covering
It is pure speculation to say that any did
21 In reaching this conclusion , I have carefully considered the testimony of the various
witnesses , including Rapp , regarding the position of the company leaflet and other docu-
ments on the bulletin board , and the Union 's arguments and inferences from such testi-
mony. I have also carefully observed the demeanor of these witnesses on the stand in
reaching my conclusion It is significant that Rapp was the Union ' s witness, and was not
called as a hostile witness, or declared such by the Union , so far as the record discloses.
His testimony , like that of certain company witnesses , was somewhat vague as to the
minutiae of placement of specific papers on the board , other than the two in question, at
specific times , but I do not think this detracts from his straightforward story as to the
time and position of his placement of the official notice and company leaflet. The Union's
arguments plainly try to discredit his testimony and thereby raise an inverse inference
that , since he was a company employee , he was the one who defaced the official notice.
I think the Union is bound by his testimony to the contrary ; and even if it were not, it
still appears to me that in all the circumstances the inference that Harris created the cov-
erage for a prounion purpose is far more cogent than the opposite one urged by the Union.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The termination of Jack B. Harris
Harris worked as a truckdriver at Campostella in 1962. During the union cam-
paign he attended five or more union meetings at Norfolk and Richmond, and in the
latter part of the campaign openly solicited for the Union among employees at
Campostella.
In late April or early May 1962, Harris had a talk with Vice President and Gen-
eral Manager Gourley at Campostella in which they discussed the advantages and
disadvantages of a union in the plant. At the outset, Harris asked Gourley how he
could get back his union card, saying he had signed it and later called the union
people but they refused to return it to him. Gourley said, he did not know but
would find out. Harris indicated that he was disgusted with the Union and satisfied
with his employment with Respondent. In the discussion, Gourley asked Harris
what the Union could offer him if it organized the plant. Harris argued that it could
offer a lot, but Gourley disagreed. Harris asked what the disadvantages were, and
Gourley said that one was that the "boys would not clean the trucks." 22 This ap-
peared to be an amicable discussion of the pros and cons of unionization, in which
each asked the other questions and exchanged views on the subject. In these cir-
cumstances I find no coercion in Gourley's query of Harris about his thoughts of
the advantages of the Union, or his statement of one possible consequence of
unionization.23
On Tuesday, June 5, 1962, Harris had a discussion in the dispatcher's office at
Campostella with James Fernell, a Negro driver, and driver Robert Best, in the
presence of clerk Nicholas Facenda. In the discussion, Harris asked Best and Fernell
if they had signed union cards. They said they had not. Harris said that if the
Union was in the plant and the men went on strike and he was on the picket line, and
someone crossed the picket line or tried to get his job he would "kick some asses"
and "kill them." Fernell replied, "Yeah, I'd like to see you out there on strike,
I'd take the truck and run over you." Both Harris and Fernell were talking seriously
when they made the quoted remarks. Facenda took no part in the discussion, but
promptly reported the incident to Supervisor Havice.24
On June 9, Harris was called from his work to the office of Supervisor Walter F.
Bailey. Bailey told Harris be had received word that Harris had been making
threats to fellow workers and they would have to let him go for that. Harris asked
what he meant, saying he had not threatened anyone. Bailey said he had a signed
statement that Harris had threatened someone on the job and that "we can't have
this kind of thing." Harris asked who be had threatened, also when and where.
Bailey said he could not tell him and would say no more about it. Harris complained
that this was a poor reason for discharge of a man who had worked there 3 years
without absence or other blemish on his record. Bailey handed Harris his final pay-
checks. As Harris got up to leave, he said, "You can let me go if you want to,
but the Union will get in here anyway." He also asked Bailey if he could get a
recommendation from Respondent when he sought another job. Bailey said he
would not give it to him and refused to state any reason 25
The issue is whether Harris was discharged for threatening another worker, or
for his union membership and activity with his alleged threat as a mere pretext.
Bailey testified that he got a report of the incident the same day it occurred from
Havice. He at once interviewed Fernell, Best, and Facenda for their version of
the discussion, and got the following report: As the three drivers checked in, Harris
started a discussion about the Union and argued for it. Fernell said that the em-
ployees had noticed that Harris' mother-in-law's house was up for sale, and stated
that if the Union got into the plant, Harris' home would be the next up for sale.
Harris replied, "I don't care if I do lose my job, if I am walking a picket line and
one of you try to cross it, I'm going to get (or kick) somebody's ass." The three
employees indicated to Bailey that these remarks were made seriously, not as a joke,
and he inferred that they considered Harris' remark as a threat. Bailey then con-
22 These facts are based on credited testimony of Gourley and Harris.
211 find no violation of the Act in Gourley's remark to a group of employees including
Harris on June 8, 1962, that if the Union came into the plant he would sell his "part" of
the Company Harris is not sure of the exact words Gourley used, and there Is no
explanation of the word "part." In any event, the remark appears to be only a statement
of personal preference and contains no direct or implied threat or promise which can be
called coercive
24 These facts are based on credited testimony of Harris, as corroborated in large part
by that of Facenda. Fernell and Best did not testify.
25 These findings are based on credited testimony of Harris and Bailey.
SOUTHERN MATERIALS COMPANY, INC., OF NORFOLK 39
suited with Gourley about the incident and recommended discharge of Harris be-
cause Respondent could not tolerate threats by an employee to fellow employees in
connection with discussion of the Union, since Respondent was not permitted to
make such threats during the campaign, and Bailey felt the "Union should work
under the same rules," and that Harris' threat had come "from the other direction."
Gourley testified that he approved the recommendation for the same reasons, with-
out making any independent investigation of his own but relying on the reports
Bailey got.
It is well settled, of course, that an employer may discharge an employee for good
reason, bad reason, or none at all, even if the employee is a union adherent or en-
gaged at the time in protected union activity, provided the discharge was in fact
motivated by reasons other than the union activity. In Harris' case, it is clear
from Gourley's early discussion with him that Gourley probably got the impression
that Harris was antiunion. However, it is also clear from Bailey's version of
Facenda's report that he then knew Harris was prounion, while Best and Fernell
were antiunion. In view of this knowledge and Respondent's general union animus
and other unfair labor practices during the campaign, the circumstances and alleged
reason for the discharge require close scrutiny, which reveals certain other circum-
stances that weaken the defense.
While Bailey claims he was entitled to discharge Harris for a threat coming from
the union side, as a matter of evenhanded justice, since Respondent was prohibited
from making threats to employees, he admits that he made no attempt to interview
Harris and get his version of the story, and that he got no report from Facenda
or the other drivers about Fernell's full remarks to Harris, particularly his threat to
run over him with the truck. It is obvious that if he had given Harris any chance
to tell his version, all of Fernell's remarks would have come out, so that he would
have had a chance to compare and choose between the two threats and decide if
one or both men should be discharged 26 Fernell was not discharged or disciplined
in any other way. Bailey's failure to get the full story, give Harris a hearing on
it, or even discuss it with him when he vigorously denied the charge, is a potent
indication that he was not interested in the actions, however serious, of the two
antiunion drivers, but only in any derelictions of Harris which would support a dis-
charge. Further, while Bailey now says that a threat to "kick someone' s ass" is
an indication of violence and ground for discharge, he admits that he has used
that expression himself, and even engaged in that practice in horseplay with others.
Since Facenda apparently reported only the threat to "kick someone's ass," not the
threat to kill, it would seem that Bailey's own worldly experience with that expression
and such horseplay might have suggested that Harris may have made it in jest or
during the rough banter of workingmen,27 especially where Harris manifested a
surprised ignorance of the matter by his vigorous denial of any threats and requests
for details. The fact that Bailey took a predetermined, closed attitude on the serious-
ness of the threat, as reported to him, is a strong indication that he was already dis-
posed to terminate Harris on whatever pretext. The same conclusion is compelled
by his failure to investigate or do anything about Fernell's more serious threat to
impose bodily harm with a truck. These conclusions are strengthened by their
consistency with Respondent's demonstrated antiunion attitude and earlier threats
of discharge to employees for union activity as found above.
After careful consideration of all the circumstances and arguments pro and con,
I conclude that Respondent has not sustained the burden of going forward with
cogent proof of a discharge for cause sufficient to rebut the proof adduced by General
Counsel in support of a discriminatory discharge, and that General Counsel has sus-
tained the ultimate burden of providing by a preponderance of all the credible and
pertinent evidence that Respondent discharged Jack B. Harris on June 9, 1962,
because of his union activity, thereby discouraging membership in a labor organiza-
tion in violation of Section 8 (a) (3) of the Act.
ze Respondent well knew, as Gourley admitted, that the Union was a very live issue
among the employees, with many arguing pro and others against it, and Bailey knew from
Facenda's report that the Harris-Fernell argument had been that type of discussion.
' The record shows that once in May mechanic Thomas Raiford, who was antiunion,
had told some friends in an argument about the Union that they should have their
"asses kicked" if they went into a union after working for a company as good as Respond-
ent. While there is no proof that management heard about this talk, it is inferable from
it that the expression "get your ass kicked" or variations of it were not uncommon in
employees' conversations in Respondent 's plants
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The termination of William H. Sawyer
William H. Sawyer was a crane operator of over 20 years' service with Respondent
up to the time he quit his job on July 3, 1962. During the last 12 years of his
service he worked at the Dock Street yard in Richmond, Virginia. During the
union campaign, he openly attended several union meetings, including one a short
time before the election at which he was photographed with other employees; the
photo was printed in a union propaganda leaflet openly distributed at the plant and
elsewhere on the day of the election and a few days before.
In the latter part of May 1962, Vice President Wingo learned "by the grapevine"
that Sawyer was "stirring up a little trouble" among the employees, by meeting
with employees and talking against Respondent, so he made a special trip to Dock
Street about June 1 to talk to him and find out what was bothering him. Wingo
explained to him the Company' s antiunion attitude, with arguments and his own
personal views on the same line Sawyer told him that if Respondent had given the
men a 25-cent raise, "we would not have all this trouble." Wingo said that Re-
spondent wanted to "keep things the way they are," mentioned Sawyer's long service
with the Company, and requested Sawyer's "personal support," suggesting that he
talk to the employees and persuade them to vote against the Union. Sawyer replied
the employees were all of age, and knew what they wanted without his talking to
them, that he had not talked to anyone about the union matter yet, but was "on
the fence," and would have to talk to his wife about it and "we will just let it go
at that." Three or four days later, Wingo approached Sawyer and told him he
would make arrangements with Thomas R. Costin, superintendent of all the
Richmond area plants, to give Sawyer Saturday afternoon off with pay. Sawyer ex-
pressed his appreciation. About a week later, Wingo again talked to Sawyer privately
and told him angrily, "You have cal'ad tricks on the men, messing around with one
of the unions ; those damn union people have got them all upset." Sawyer force-
fully denied that he had talked to any workers about the Union, but admitted he
had been going to union meetings, insisting that it was a "free country," and he had
a right to do S0.28
On Friday, June 15, 1962, Wingo learned from Superintendent Costin that a crane
operator at the Lynchburg plant had been fired and another operator was needed
there at once. In discussing the matter, Costin recommended to Wingo that Sawyer
be chosen and Wingo approved it. Costin at once called Sawyer to his office, said
he had learned the crane operator at Lynchburg had been fired, the Company was
"in a bind there" and needed a man quickly, and told Sawyer he was sending him
to work there 29 Sawyer commented that Costin should have given him some
advance notice but that he did not mind going up there for a few days to help out
Respondent until it got another operator. Costin replied, "No, this is permanent."
Sawyer again protested that he should have been given 2 weeks' notice to consider
the move and discuss it with the Company. He asked if his work at Richmond was
satisfactory and Costin said that he had no complaint about his work. Sawyer
then asked if he had to go and Costin answered, "You have to go or quit." Sawyer
said that it was a hard decision to make, that he did not want to go, as he owned
his home in Richmond, it was almost paid for, and he needed time to think it over.
Costin told him to do so. Sawyer returned to work for a few hours, during which
he talked to his wife about it on the telephone. She left the decision to him Sawyer
then went back to Costin and asked if he had to go or if the decision could be
changed Costin said he could do nothing about it, but that Sawyer could talk to
Wingo, as the latter had made the decision and only he could change it Sawyer
at once sought out Wingo, told him of the transfer, said he should have been given
2 weeks' notice of it, and asked if the move had to be permanent, stating that it
"put a strain" on him, as he owned his home in Richmond, and his wife was ill,
subject to fainting spells, and his doctor had told Sawyer he should not leave her.
Wingo replied "That is not my worry, that is your worry, I can't do anything about
it," that the transfer had to be permanent, as Costin had made the decision, and he
could not go over his head. Sawyer asked if the transfer was because of his work
'O The above findings are based on credited testimony of Sawyer, as corroborated in
large part by admissions of Wingo Testimony of the latter in conflict therewith, especially
his denials of the last talk with Sawyer, are not credited, in part because it is clear from
admissions of Gourley and Wingo that Respondent kept close tabs on the views of em-
plovees during the campaign, by receipt of constant reports from supervisors.
2B The Lynchburg plant is about 100 miles from Richmond
SOUTHERN MATERIALS COMPANY, INC., OF NORFOLK 41
and Wingo said no, his work was satisfactory. Sawyer finally said he would go to
Lynchburg and try out the job.30
Sawyer went to Lynchburg on Monday, June 18, 1962, with Respondent paying
his transportation. He worked there 3 weeks until July 4, during which time
Respondent paid his hotel bill and board there.31 At Lynchburg, Sawyer operated
a crane shovel as at Richmond. His workweek was 4 hours shorter, as he was not
required to work after 1 p.m. on Saturdays. When not running his crane,32 Sawyer
was required by his foreman, Martin Hudgins, like other employees, to do odd
jobs such as cutting weeds with a hand sickle. Shortly after he began work there,
Hudgins asked Sawyer, "Have you got Seaman cards and everything?" to which
Sawyer replied, "I don't see how I am going to have time to do that, running this
crane." On or about Thursday of his second week there, Sawyer went to the truck
shop for a drink of water and idled there about an hour, waiting for railway cars
which he could unload. For most of the period he stood in the doorway watching
drivers work on their trucks. Hudgins saw him there and called to him to stop
talking to the drivers. Sawyer protested that he had not talked to them, that he
was minding his own business, that Hudgins had stood in the office door for an hour
watching him, and that he had not come to Lynchburg to have trouble, but force-
fully warned Hudgins to "get off my back, or I am coming in that office and we will
have it out " The next day, Friday, June 29, Hudgins put Sawyer to work cutting
weeds for about 4 hours in the hot sun, along with another worker. That night
Sawyer drove home to Richmond, talked to his wife, and decided to quit Lynchburg,
rather than risk having trouble with the officials there, as he feared he might strike
one of them in anger. His wife agreed with him. On Sunday, July 1, Sawyer
called Wingo on the telephone and said he was quitting but that he would, work
Monday and Tuesday so as not to leave the Company "in a strain." Wingo asked
him if he had talked to Costin. Sawyer said he tried to reach Costin but could not.
Wingo asked if he had contacted Manager Utley or Foreman Hudgins at Lynchburg,
and Sawyer said he had not. Wingo said he appreciated Sawyer's staying for 2 more
days and was sorry to hear he was leaving, but if that was the way he felt about it,
that was his decision. Sawyer worked July 2 and 3, came home for the 4th, and
never actually returned to work for Respondent. Sometime later he called Emerson
about returning to work but when Emerson said he would have to talk to Wingo and
President Hofheimer about it, Sawyer told him to forget it "if you have to go through
all that " 33
The following circumstances in the record show a prima facie case of discriminatory
discharge: (1) Wingo's knowledge as early as May that Sawyer was actively talking
for the Union, (2) his immediate but vain attempt to convert Sawyer into an active
proponent of the company antiunion position, both by earnest discussion with a man
with whom he had long been on a first-name basis, and by offering him the un-
solicited benefit of a Saturday afternoon off with pay, and then angrily reproaching
him for having talked for the Union among the men, which Sawyer hotly denied,
(3) the abrupt transfer of Sawyer to a plant 100 miles from his home and sick
wife on a "take-it-or-leave-it" basis, and (4) Hudgin's immediate query of Sawyer at
the new location if he had union cards, followed shortly by Hudgin's prolonged
observation of Sawyer while temporarily off duty waiting for work, and unwarranted
order to him against talking with other employees, which provoked an argument,
and Sawyer's final quitting a few days later.
Respondent's defense is that Sawyer quit his new job voluntarily for reasons not
stated by him, but inferentially because the Union lost the election. Sawyer testified
that he quit because of the "pressure" put on him at Lynchburg, mentioning that he
would have to sell his home, the warning by Hudgins and the ensuing argument, the
assignment to the unpleasant job of grasscutting the next day, and his fear that he
might get into a serious and possibly physical argument with the officials there. I
discount the grasscutting chore on a hot day as "pressure," because that was an oc-
30These facts are based on credited testimony of Sawyer, as corroborated in large part
by admissions of Costin and Wingo. Testimony of the latter two at variance therewith
is not credited
31 Sawyer came home weekends at his own expense to visit and take care of his wife.
32 At Richr-'nd, Sawyer had operated a crane 10 hours a day, 6 days a week, in peak
periods, but at Lynchburg he handled the crane an average of only 5 hours a day
3'These findings are based on credited testimony of Sawyer Hudgins did not testify
in the case
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
casional part of the job of all men at Lynchburg when not otherwise occupied 34
However, it is clear that from Hudgin 's query about the union cards 35 that he had
been forewarned that Sawyer was a union adherent and must be watched. It is a
reasonable inference that this prompted his watching of Sawyer and admonition
against talking to other employees. Sawyer admits he is hot-tempered, so this
provoked an argument with Hudgins, which upset Sawyer. As there is no proof
that Sawyer had had any arguments with management at Richmond over the Union,
aside from his last two talks with Wingo found above, it is inferable that the prompt
admonition against talking shortly after he arrived at Lynchburg, which provoked an
argument, was a form of "pressure" of the type reasonably calculated to make the job
unpleasant and induce the idea of quitting . However, I am constrained to conclude
from the sequence of events and other testimony of Wingo and Costin that Respond-
ent put deliberate and unpleasant personal and economic pressure on Sawyer at
the outset in the way it announced and made his transfer. Although the need for
a man at Lynchburg arose suddently, Wingo and Costin immediately chose Sawyer
for the job without considering other available employees, or Sawyer's own personal
problems. Credible testimony of Sawyer and Costin shows that Respondent had
two other crane operators at Richmond of 8 or 10 years' service, respectively, one
of whom, Joseph Watkins, had worked at Lynchburg several times in the past, but
there is no proof that Costin or Wingo considered either of them for the job at all.
On the contrary, Wingo admits that, in recommending Sawyer, Costin told Wingo
only of various things that Sawyer could not do (which neither official specified in
testimony). Since both men assured Sawyer his work at Richmond was satisfactory,
it is inferable that the unstated "limitations" of Sawyer were nonexistent and brought
up at the hearing as afterthoughts and convenient pretexts.36 Also, Wingo and Costin
well knew that the sudden permanent transfer would be a hard blow to Sawyer, as
they admit they knew about his home and sick wife, which facts he stated when he
protested against the suddenness of the decision. Costin tried to evade any explana-
tion by referring Sawyer to Wingo as the final arbiter; the latter, in turn, tried to
"pass the buck" back to Costin.37 Although Wingo at first appeared indifferent to
Sawyer's protestations of the hardship of the move, it is noteworthy that in the same
breath he tried to soften the blow, as he admits, by trying to persuade Sawyer that
he would have good people to work with and less onerous work at Lynchburg.35
It is also significant that, in the face of Sawyer's vigorous protest, Wingo made no
offer to his longtime acquaintance to bring him back if he found he did not like the
Lynchburg job,39 nor did he try at the last to find out why Sawyer was quitting, or
to allay any fears he might have about future trouble on the job, by talking to
Sawyer's superiors at Lynchburg, or otherwise. Such callous indifference to the loss
of a competent and presumably valuable longtime employee cannot be explained
other than by the strong inference arising from the circumstances cited above that
Respondent chose him for sudden transfer because (1) it was displeased with his
prounion activities and refusal to spread the Company's antiunion arguments, and
wanted to get him out of the Richmond area into a facility with fewer employees 40
where he could more easily be watched and his union activities curtailed, and
(2) from Wingo's knowledge of his personal situation, it had good reason to believe
u As Lynchburg is almost due west of Richmond, it is inferable that if Sawyer with-
stood July heat in Richmond for 12 years or more, he would not be bothered by it in
Lynchburg.
31 This was in itself illegal interrogation in violation of the Act, in the light of Wingo's
previous remarks to Sawyer and Respondent's other unfair labor practices
81 Costin says that one reason he chose Sawyer was because he had become accustomed
to working shorter hours at Richmond (which was the result of some negotiations of
Sawyer and others with management the year before), and had indicated earlier that he
wanted to continue the shorter hours However, I discredit this as a bona fide reason
for the choice, for -Costin does not say he mentioned this as an inducement to Sawyer
when the latter protested so vigorously against the transfer. Nor does it appear that
Wingo mentioned shorter hours to him.
111 do not credit Wingo's feeble excuse that he had no power to stop the transfer or
offer to transfer Sawyer back if he wanted to return to Richmond after a trial, since it is
clear from the way the decision was made that Wingo, the superior officer, had the final
say on Costin's recommendation.
38 Utley's testimony indicates that be also took pains to assure Sawyer, on arrival, that
he would like Lynchburg, inviting him to fraternal meetings, etc
39I do not credit his self-serving statement that Sawyer could have had his old job
back if he had asked for it, for the "take-it-or-quit" ultimatum of both officials made it
clear to Sawyer that such a request would have been useless.
40 Lynchburg had only about six or eight employees.
SOUTHERN MATERIALS COMPANY, INC., OF NORFOLK 43
Sawyer would protest, as he did, against the transfer and, if it were made permanent,
might quit, and Respondent would thus be rid of an influential proumon employee.
In all the circumstances, I must conclude that General Counsel has sustained the
ultimate burden of proving by the requisite preponderance of credible evidence that
Respondent transferred Sawyer on June 15, 1962, and constructively discharged him
on July 3, 1962, because of his union activities, and thereby discouraged member-
ship in a labor organization in violation of Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above, occurring in connection with
Respondent's operations 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 commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that Respondent has unlawfully discriminated in regard to the hire,
terms, and tenure of employment of William H. Sawyer, I shall recommend that
Respondent offer to him immediate and full reinstatement to his former or a sub-
stantially equivalent position at Richmond, Virginia, without prejudice to his seniority
and other rights and privileges, and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him by payment to him of a
sum of money equal to that which he would have earned as wages from the date of
such discrimination to the date of a proper offer of reinstatement, less his net earn-
ings during such period, the backpay to be computed in the manner prescribed by
the Board in F W. Woolworth Company, 90 NLRB 289. Interest at the rate of
6 percent per annum shall be added to the backpay due, computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I will also recommend
that Respondent preserve and, upon request, make available to the Board or its agents,
all pertinent records which may be necessary to analyze and compute the backpay due.
Having found that Respondent discriminated in like manner against Jack B. Harris,
I would normally recommend the same backpay and reinstatement remedy as in
Sawyer's case. However, having found strong evidence indicating the probability
that Harris, after his discharge, entered Respondent's premises on June 24, 1962,
secretly in order to manufacture evidence of coverage of an official election notice
to aid the Union in any attempt to upset the results of the coming election, if adverse,
I feel that it would be against public policy and would not effectuate the purposes of
the Act to order his reinstatement. However, I shall recommend that Respondent
pay him backpay computed in the manner stated above, for the period from his
unlawful discharge until June 24, 1963.41
In view of the nature and variety of unfair labor practices committed which in-
dicate Respondent's fundamental disregard of the rights of employees protected by
the Act, I shall recommend a broad cease-and-desist order.
Upon the basis of the foregoing findings of fact, and on the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The above-named Union is a labor organization within the meaning of Section
2(5) of the Act.
2. By discharging Jack B. Harris, and transferring William H. Sawyer and caus-
ing him to quit his employment, and refusing to reinstate him, because of the union
activities of each of these employees, thereby discouraging membership in labor or-
ganizations, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By the above and other conduct found above, Respondent has interfered with,
restrained, and coerced employees in the exercise of rights guaranteed by Section 7
of the Act, and has thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
4. The above unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act
5. Except as found above, Respondent has not engaged in conduct violative of
the Act as alleged in the complaint.
*' Cf Virginia Electric d Power Company , 44 NLRB 404, 438, 439; Threads, Incorpo-
rated, 132 NLRB 451, 468; Offner Electronics, Inc, 134 NLRB 1064, 1075-1077.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record in the case, I recommend that the Respondent, Southern Materials Company,
Incorporated, of Norfolk, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or in any other labor organizations
of its employees, by discharging, transferring, refusing to reinstate, or in any other
manner discriminating against them in regard to hire or tenure of employment, or
any terms or conditions of employment.
(b) Interrogating employees about their union activities and sentiments in a man-
ner constituting interference, restraint, or coercion within the meaning of Section
8 (a) (1) of the Act; promising them benefits or threatening them with discharge or
other reprisals because they joined the above-named Union or engaged in other
concerted activities, or to persuade them to refrain from union or other concerted
activities, or to vote against any labor organization in a Board-conducted election
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of any of the rights guaranteed to them by Section 7 of the Act,
except to the extent that such right may be affected by an agreement requiring
mmebership in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act
2. Take the following affirmative action which is designed to effectuate the policies
of the Act:
(a) Offer William H. Sawyer immediate and full reinstatement to his former or
a substantially equivalent position at Richmond, Virginia, without prejudice to his
seniority or other rights and privileges previously enjoyed, and make him and
Jack B. Harris whole for any loss of pay they may have suffered by reason of the
discrimination against them, in the manner and to the extent set forth in the section
hereof entitled "The Remedy."
(b) Post at all of its offices, plants, facilities, and other places of business in
the State of Virginia, copies of the attached notice marked "Appendix." 42 Copies
of said notice, to be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by Respondent's representatives, be posted by Respondent
immediately on receipt thereof, and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other material
(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 and
compute the amount of backpay due and the right of reinstatement under the terms
of this Recommended Order.
(d) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Report, what steps Respondent has taken to comply herewith 43
It is further recommended that the complaint be dismissed as to all allegations
other than those specifically found above to be unfair labor practices
It is further recommended that the Board set aside the election of June 28, 1962,
and direct a new election at an appropriate time.
la In the event that this Recommended Order be adopted by the Board , the words "A De-
cision 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" shall be substituted for the words "A
Decision and Order"
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read, "Notify the said Regional Director , In writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 discourage membership in United Industrial Workers of North
America and Inland Boatmen's Union, both of the Seafarers International Union,
S. SWARTZ 45
of North America, Atlantic, Gulf, Lakes, and Inland Waters District , AFL-CIO,
or any other labor organization of our employees, by discharging , transferring,
refusing to reinstate , or in any other manner discriminating against them in
regard to hire or tenure of employment or any terms or conditions of
employment.
WE WILL NOT interrogate our employees about their union activities or senti-
ments in a manner constituting interference , restraint , or coercion within the
meaning of the Act, promise them benefits or threaten them with discharge or
other reprisals because they affiliated with the above-named Union or engaged
in other concerted activities , or to persuade them to refrain from union or other
concerted activities, or to vote against any labor organization in a Board-
conducted election.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of any of the rights guaranteed to them by Section 7
of the Act, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer William H . Sawyer immediate and full reinstatement to his
former or substantially equivalent position at Richmond , Virginia, without
prejudice to his seniority or other rights and privileges previously enjoyed, and
we will make whole William H. Sawyer and Jack B. Harris for any loss of
pay suffered as a result of our discrimination against them.
All our employees have the right to form, join, or assist any labor organization,
as well as the right not to do so.
SOUTHERN MATERIALS COMPANY,
INCORPORATED, OF NORFOLK,
Employer.
Dated------------------- By--------------------------------(Title]-----
(Representative
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 ap-
plication 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, Sixth
Floor, 707 North Calvert Street, Baltimore 2, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provisions.
Sarah Swartz, Herman M . Weisman and M . James Weisman
d/b/a S. Swartz and Local 169 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case No. 4-CA-,0785. November 18, 1963
DECISION AND ORDER
On August 19, 1963, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs, and the Respondent
filed a brief in support of the Intermediate Report.
145 NLRB No. 6.