Synalloy Corp.

National Labor Relations Board - Board Decisions

Aug 29, 1975

220 N.L.R.B. 52 (N.L.R.B. 1975)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blackman-Uhler Chemical Division-Synalloy Corpo-
ration and International Molders & Allied Workers
Union, AFL-CIO-CLC. Cases 11-CA-5800 and
11-RC-3936
August 29, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On April 23, 1975, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding.' Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the attached Decision in
light of the exceptions and brief and has decided to
affirm the rulings, findings,2 and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders in Case 11-CA-5800 that the Respondent,
Blackman-Uhler Chemical Division-Synalloy Cor-
poration, Spartanburg, South Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
IT IS FURTHER ORDERED in Case 11-RC-3936 that
the Regional Director for Region 11 shall open and
count the ballots of Cynthia Holcomb, Brenda Tay-
lor, Carolyn Pugh, Vivian Coggins, Cynthia Dodkin,
and Raymond Roberts. Therefore, the Regional Di-
rector shall cause to be served on the parties a re-
vised tally of ballots including therein the count of
the above-mentioned ballots, and shall issue the ap-
propriate certification.
I The Board issued an Order Directing Hearing on March 24, 1975 (217
NLRB No. 7).
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F.2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
DECISION
FRANK H. ITKIN, Administrative Law Judge. These con-
solidated cases were tried before me on November 25, 26,
and 27, 1974, at Spartanburg, South Carolina. Unfair labor
practice charges were filed by the Union on July 15 and
were amended on October 16, 1974, in Case 11-CA-5800.
An unfair labor practice complaint issued on September 30
and was amended on October 21, 1974. The Board's Re-
gional Director for Region 11 issued a Report on Chal-
lenges and Objections, Direction and Order Consolidating
Cases , dated November 7, 1974, in Case 11-RC-3936. The
Regional Director ordered that Cases I1-CA-5800 and 1 I-
RC-3936 be consolidated for the purpose of hearing, rul-
ing, and decision with respect to the issues raised pertain-
ing to 11 challenged ballots in the related representation
proceeding . See Blackman -Uhler Chemical Division-Synal-
loy Corporation, 217 NLRB No. 7 (1975). The principal
issues raised in the unfair labor practice proceeding (Case
1l-CA-5800) are whether Respondent Company violated
Section 8(a)(1) and (3) of the National Labor Relations Act
by coercively interrogating employees about union activi-
ties ; by warning and threatening employees with reprisals
because of their union activities; by granting employees a
wage increase in an attempt to undermine employee sup-
port of the Union; and by discharging employees Vivian
Coggins, Carolyn Pugh, Lynn Carnes, Brenda Taylor,
Cynthia Dodkin, and Cynthia Holcomb on July 12, 1974,
in order to discourage employee union activities. With re-
spect to the issues raised in the related representation pro-
ceeding (Case I I-RC-3936), 5 of the 11 persons whose bal-
lots were challenged I are also alleged to be discriminatees
in Case 11-CA-5800 and the pertinent evidence and con-
tentions are discussed below. Two of the persons whose
ballots were challenged 2 are, as stipulated before me, not
eligible to vote in the representation proceeding and, there-
fore, the challenges to their ballots are sustained. The evi-
dence and contentions pertaining to the remaining four
persons whose ballots were challenged 3 are treated in sec-
tion IV, infra.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
all counsel, I make the following findings of fact and con-
clusions of law:
FINDINGS OF FACT
1. INTRODUCTION; JURISDICTION
Respondent Company, a South Carolina corporation
with facilities in Spartanburg, South Carolina, is engaged
in the manufacture of dye stuffs, pigments, and intermedi-
aries. During the prior 12-month period, Respondent Com-
pany received goods and materials valued in excess of
$50,000 which were transported directly from outside of
South Carolina. I find and conclude that Respondent
Company is an employer engaged in commerce within the
i Holcomb , Taylor, Dodkin, Pugh, and Coggins
Alexander Nichols and Jerry Crocker.
i Robert Walker , Floyd Morton, Raymond Roberts, and Debbie Peeler.
220 NLRB No. 14
BLACKMAN-UHLER CHEMICAL DIVISION 53
meaning of Section 2(6) and (7) of the Act. And I find and
conclude that the Charging Party-Petitioner, as stipulated,
is a labor organization within the meaning of Section 2(5)
of the Act.
H. THE UNION ATTEMPTS TO ORGANIZE THE COMPANY'S
EMPLOYEES ; MANAGEMENT 'S CONDUCT DURING THE
ORGANIZATIONAL CAMPAIGN
A. The Employees Sign Union Cards and Attend Union
Meetings; Management Questions Employees
Employee Carolyn Pugh testified that, prior to her layoff
on July 12, 1974, she worked as a technician in Respondent
Company's customer service laboratory. Pugh attended the
first union meeting on June 12, 1974; she signed a union
card and solicited her coworkers to sign union cards.
Pugh's immediate supervisor is Charlotte Vassey. The
Company's plant manager is Kenneth Foster. Pugh re-
called that about June 26, 1974, Plant Manager Foster
called employee Pugh into his office. Only Foster and Pugh
were present. Pugh testified:
He [Foster] said he had heard that there was some
trouble down in Customer Service Lab and did I
[Pugh] know what the trouble was; that he felt like I
knew what it was, and he asked me, if I-didn't I like
my supervisor, or would [I] rather work for a man.
And I told him I would rather work for a man. And he
told me that he thought I knew a lot more than I let
on. And some day that job would be vacant, my
supervisor's job, and that if I knew I was going to get
it, would I still think a man would be better. And I
said I thought he would.
Employee Catherine Wease is employed by Respondent
Company as a secretary in the customer service laboratory.
Vassey is her supervisor. Wease recalled that about July 10,
1974, Plant Manager Foster called her into his office.
Wease explained:
He [Foster] called me [Wease] into his office about 2
or 2:30, which is the first time he has ever called me
into his office . . . he said it was just routine checking
on Company policy , was I satisfied with my job... .
And then he went on to say that he knew that there
was trouble within our Lab and within the plant and
that there was two departments that the trouble was
not in and that there was between three to five trou-
blemakers in our Lab and that those people had to be
dealt with and the unrest had to be straightened out
.... And he went on to say that the middleman
could be hurt if he stayed in the middle.
Wease recalled that shortly thereafter, about July 17, in the
plant parking lot, Foster again talked to her,
... about the middleman being hurt and that I
[Wease] should speak out my opinion because my fel-
low workmates were speaking out theirs and I should
talk them down; referring that I was against the
Union.
Employee Lynn Carnes, prior to her layoff on July 12,
1974, worked as a technician in the customer service labo-
ratory. She signed a union card and attended the union
meeting in June 1974. Carnes related how she asked co-
worker Carolyn Estler "if she [Estler] wanted to sign a card
.. " 4 Estler refused and said that "once before the
Union had tried to come into the plant . . . "; that " .. .
her [Estler's] name got into it before and she didn't want
her name in it again . . . "; that " . . . she [Estler] was
going to do something about it before it got started this
time . . . "; and that " . . . she [Estler] was going to talk to
Mrs. Vassey.... " Estler was observed going into
Vassey's office. Estler, after speaking with Vassey in
Vassey's office, related to Carnes that Estler had "told
[Vassey] about the Union being started, trying to get start-
ed down there.... " 5
Employee Cynthia Holcomb testified that during late
June 1974, in the customer service laboratory, Plant Man-
ager Foster asked employees: ". . . when is this Union
going to get off the ground" or "when is the Union going to
get started." There was no response by the employees to
this question. Employee Cynthia Dodkin, also employed in
the customer service laboratory prior to her layoff on July
12, recalled that Plant Manager Foster asked employees in
the customer service laboratory during late June 1974:
"... I wonder when the Union is going to get going
strong."
Plant Manager Foster, although generally denying vari-
ous statements attributed to him by the employee witness-
es, acknowledged that about June 26, 1974, he spoke with
employee Pugh in his office. Foster testified:
... we had some difficulty around the plant off and
on for some time; generally, when we had unrest or
problems, I [Foster] had resorted to the mechanism of
interviews to attempt to do something about the prob-
lems.... So, I interviewed several, two or three of
the girls, in the Service Laboratory as to what their
problem was; in terms of why they were malcontent.
Foster claimed that he asked the interviewed employees
"... what their opinion of their supervisors were; what
their opinions of their working conditions . . . [and] pay
scales were ; but in no case did I ask them about a Union or
mention a Union.... " However, as Foster acknowl-
edged, he had been informed earlier , about June 20, that
there was union activity in the plant. Foster specifically
recalled that about June 20 employee Kenneth Hutchins
had revealed to him that there was union activity in the
plant. Foster then questioned his supervisors "if they had
heard anything about Union activity." Thereafter, between
June 20 and June 27, Supervisor Vassey apprised Foster
"that one of the girls told her [Vassey] about the activity in
the Service Laboratory." As Foster explained: ". . . [Vas-
sey] told me that one of her girls had told her that there
was Union activity." Supervisor Vassey, although present
at the hearing, did not testify.6
4 Estler is also spelled in the record as Easter
5 As discussed infra, Company President Erwin Thornton acknowledged,
in effect, that Supervisor Vassey had related information to him about em-
ployee union activities and that Vassey had learned this information from
employee Estler
6 The Union filed a representation petition in Case I I-RC-3936 on July
18, 1974. A Stipulation for Certification Upon Consent Election was ap-
Continued
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Company Lays Off Six Employees in the Customer
Service Laboratory and Grants Remaining Employees a Pay
Raise
Erwin Thornton, Respondent Company's president, ac-
knowledged that about June 23 or 24, 1974,
. I [Thornton] was told by Mr. Foster that we had
Union activity in the Customer Service Lab, and then
I was told by Mrs. Vassey that we also had Union
activity in the Customer Service Lab. . . . Mrs. Vas-
sey indicated to me that the number was probably
substantial , engaged in the activity.
Thornton recalled that Vassey had mentioned to him "the
name of the lady that informed [Vassey]" about the union
activity; the informant was employee Estler (see subsection
A, supra). When asked if any names of employees in the
customer service laboratory were revealed during this con-
versation with Vassey, Thornton could not "recall any spe-
cifics." Vassey, as stated, did not testify.
On Friday, July 12, 1974, between 2:30 and 3 p.m., cus-
tomer service laboratory employees Coggins, Pugh, Carnes,
Taylor, Dodkin, and Holcomb were called into Vassey's
office one at a time and told by Vassey that they were
being laid off. The employees had been given no advance
notice of the layoff and were not permitted to finish their
shift, which was to end at 5 p.m. that day. Plant Manager
Foster claimed that he first learned of the decision to lay
off the employees on Thursday, July 11. Company Presi-
dent Thornton claimed that it was his decision "to termi-
nate the services of the ladies in the Laboratory."
... because I had to cut overhead and we didn't need
that many employees in the Customer Service Lab.
Thornton asserted that he "had to cut overhead" "because
of the decline in the use of cotton. For at least the prior two
years, we had an earning slide." However, Thornton also
testified:
Q. Now, on this day of July 12, 1974, when you termi-
nated the services of the Lab employees, I believe
your testimony was that you didn't have work for
them to do. Would you give us some background on
that?
A. Well, our Customer Service Lab is a promotional
type laboratory, it is run for the salespeople, as pre-
vious testimony had disclosed. The salespeople
bring requisitions in and that's the main function of
this laboratory to serve those requisitions.
About a month prior to July 12, maybe five weeks,
I had told our Vice-President of Sales that I wanted
him to pull our salespeople in from selling any more
Bucrons or getting any more new customers and I also
limited him to certain colors because of our produc-
proved by the Regional Director on August 16. A Board-conducted election
was held on September 12. Of approximately 120 eligible voters, 53 votes
were for Petitioner , 49 were against the participating labor organization, and
there were, as stated , I I challenged ballots, which include 5 of the 6 alleged
discnmmatees
tion problem. We were beginning to run into very em-
barrassing situations with new customers who we cul-
tivated because they were ordering and we weren't
able to supply because of our production lag; and
we'd been fighting this production lag for approxi-
mately a year trying to overcome it and each month
we thought, "well, next month is it," but the next
month never came.
Unfortunately in April of '73, I had made a pro-
jection and a commitment to my Board of Directors
that by July 1 of '73, that we would have enough
equipment installed to begin producing Bucrons at the
rate of five million dollars annually, sir. Well, July 1 of
'74 came around and we were still producing at some-
where under two million although we could have easi-
ly sold five or six million; but it was simply a problem
of production problems and at that point in Bucrons,
too many sales.
Thornton further claimed:
We were so far out-stripping our production that we
couldn't fill customer's orders, our back order list
stayed too long all the time.
► * s
Well, the Service Lab, as I said, is a promotional labo-
ratory; it serves no production function and since we
needed production at the time we didn't need promo-
tion, I could not lay off production workers, or termi-
nate production workers, so I had to cut back in the
one area that at the time we didn't need, which was
more promotion, because our sales were already much
better than production.
Prior to July 12, 1974, there had been no layoffs at
Respondent's plant for some 10 years. And, following the
July 12 layoff of the six customer service laboratory em-
ployees, there were no layoffs for over 3 months.
Thornton acknowledged that only employees in the cus-
tomer service laboratory were laid off on July 12 and, im-
mediately after their layoff,
Mrs. Vassey and I [Thornton] consulted . . . and felt
that probably the employees that would be remaining
certainly would have to assume a little bit more work
than they had been doing and that they deserved more
money.
A pay raise was then given to the remaining five or six
workers in the customer service laboratory. The pay raise
ranged from $5 to $15 per week for each remaining cus-
tomer service employee.
In addition to the foregoing testimony, the six employees
related the events attending their July 12 layoff. Employee
Dodkin had started working for the Company in Novem-
ber 1972. She had received a pay raise about January 1974
and another raise a few weeks prior to her layoff. Dodkin
recalled:
The morning that we were laid off we went in and got
our checks as usual and she [Vassey] informed us that
we were going to have to sign our time cards . . .
because she was going on vacation early next week
BLACKMAN-UHLER CHEMICAL DIVISION
.... And then , that afternoon, when we came back
from lunch , she called us in, one by one , starting with
the lowest in seniority , and laid us off... .
Dodkin received her regular salary check that morning
and, in the afternoon , she received a severance check, a
final salary check, and a vacation paycheck. Dodkin and
the five other employees were not permitted to finish their
shift that day. Dodkin noted that employees in the
Company's nearby disperse laboratory, with less seniority
than the laid-off workers, were not laid off. Dodkin testi-
fied that various "duties" performed by the employees in
the disperse laboratory are "similar" to "duties" performed
by employees in the customer service laboratory?
Ruth Austin, an employee in the customer service labo-
ratory who was not laid off, recalled that "the day they laid
off the girls , she [Vassey] told us that we would all get a
raise . . ." and the raise "began the next week ." Austin
received a $15 weekly increase . Austin also testified, in
part:
She [Vassey] said , now some of this work will have to
be taken out of this department... .
Further, Austin observed that, following the layoff,
We had a lot of work transferred over to Pigment [la-
boratory] that we would ordinarily have done in our
Lab, but not that was Customer Service work.
And, according to Austin, before the July 12 layoff, Vassey
"stayed in [her] office." However, after the layoff, Vassey
was observed "out on the bench" performing rank -and-file
work. Austin claimed that work performed in the nearby
disperse laboratory is "exactly the same thing" as per-
formed in the customer service laboratory ; however, as
stated, there were no layoffs in the disperse laboratory.
7 Employee Carnes, who started working for the Company about Septem-
ber 1972, testified to the same general effect . She attended a union meeting
in June 1974 and signed a union card . She too claimed that employees in the
disperse laboratory, with less seniority than the laid-off customer service
laboratory workers, were performing "similar" work and were not affected
by this layoff. Carnes had received pay raises in January 1974 and a few
weeks prior to her layoff.
Employee Coggins, who started working for the Company in August
1972, had signed a union card . She too had received a pay raise a few weeks
before her July 12 layoff. Coggins claimed that work performed by person-
nel in the disperse laboratory was "similar" to work performed by the laid-
off employees who, in some instances, had greater seniority . Employee Hol-
comb , who also signed a union card during June 1974, further corroborated
the above testimony.
Employee Pugh , who started working for the Company about December
1971, asked Vassey on July 12, 1974, ". . if there was any chance of being
recalled within the next few months ... " Vassey, as Pugh testified, re-
sponded : ". . . she [Vassey ] didn 't see any way that I [Pugh] would be."
Pugh also related that work performed in the disperse laboratory is similar
to work performed in the customer service laboratory. Pugh had signed a
union card and attended a union meeting on June 12, 1974.
Employee Taylor, who started working for the Company in June 1971,
was a quality control technician in the customer service laboratory when she
was laid off on July 12, 1974. She had received a pay raise in June 1974. She
had signed a union card , attended a union meeting , and solicited coworkers
to sign union cards. Taylor was recalled by the Company about October 14,
1974. Taylor explained that she "had to go back as a new employee "; conse-
quently , she lost her "seniority ," "vacation," "stock" purchasing, and "pen-
sion" benefits Taylor, prior to her layoff, "had just become eligible for the
pension plan ." Taylor also explained : "The work that I have seen done in
the Disperse Lab is similar to some of the work that is done in our [customer
service] tab."
55
Sandra Thornton, presently working in the customer ser-
vice laboratory, recalled that Vassey said on July 12:
"[T]hey were going to start moving the Disperse work back
over in the Disperse Lab, back over there on some Satur-
days. . . ." Thornton received a $10-per-week increase im-
mediately following the layoff. She too observed Vassey
performing "physical labor" after the layoff. And, Shirley
Guyton, employed in the Company's pigment laboratory,
testified that following the layoff "we did some of the Pig-
ment work that was sent from the Customer Service Lab
f) 8
C. Statements by Supervisors Poltersdorf and Littlejohn
Employee Pugh testified that following her layoff, about
July 23, she spoke with Otto Poltersdorf on the telephone.
Poltersdorf is "Head of Research" for the Company. Ac-
cording to Pugh, Poltersdorf said:
... he [Poltersdorf] had asked Burnham Uhler why
he let a lot of them good workers go and that [Uhler]
had replied that they didn't need a Union in there.
Employee-Austin, presently working for the Company, re-
called that Poltersdorf had stated in the customer service
laboratory, a few days following the layoff:
He [Poltersdorf] said he asked Burnham Uhler what
happened down there that they laid off those girls.
And this is what [Uhler] said, "Hell, the last thing this
Company needs is a damn Union." And he [Polters-
dorf] said, "well, you sure let some good workers go."
Employee Joe Williams, employed in the customer service
laboratory, similarly testified:
He [Poltersdorf] said that Mr. Uhler was in his office,
I believe, and he [Poltersdorf] asked him [Uhler] why
they were laid off and Mr. Uhler said, "We didn't
need a damn Union down there anyway" or words to
that effect...
Employee Shirley Guyton, presently working in the
Company's pigment laboratory, recalled that Supervisor
Sam Littlejohn was overheard saying to coworker Vivian
Edwards about July 18 or 19, 1974:
... if the Union was voted in that he [Littlejohn]
would no longer be [Edward's] friend, he would be a
S.O.B., and that a damn Union was nothing but trou-
ble and if it was voted in, she would not be sitting on
a stool, like she was then, she would be walking a
picket line.
Employee Linda Thornton, presently working in the pigment laborato-
ry, testified that work in that laboratory is "somewhat similar" to work
performed in the customer service laboratory Thornton acknowledged that
she had less seniority than the laid-off customer service employees. And,
employee Catherine Wease , a secretary in the customer service laboratory,
explained : "[R]eally all of our Labs are similar to our [customer service]
Lab. We've got a section of each Lab in our [customer service] Lab. The
other Labs are more concentrated and they do more extensive work... .
9 Poltersdorf claimed that he "never spoke to Burnham Uhler about peo-
ple being let go; I [Poltersdorf ] have never discussed this with the top Man-
agement." Poltersdorf , however, recalled Uhler saying, in effect, "maybe a
year" earlier, "[W]hy do we need a damn Union" and "I [Poltersdorf]
thought the same thing." Poltersdorf acknowledged that this statement was
"reiterated," "repeated;" "I may have ... I don't remember, repeated it
but that was the context of it."
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Littlejohn generally denied making the above statement.
And, employee Vivan Edwards testified on direct examina-
tion for Respondent:
Q. Who is your supervisor?
A. Sam Littlejohn.
Q. Did you hear Mr. Littlejohn testifying just previ-
ous to your testimony here?
A. Yes.
Q. Do you recall the statement that he repeated that
was allegedly-that he had made having to do with
a conversation with you, saying that if the Union
came in he would be a son of a bitch, and that
instead of setting down on that stool you would be
walking a picket line.
Miss Edwards, did Mr. Littlejohn ever, in fact, say
anything like that to you?
A. No, sir, he didn't. 10
Ill. DISCUSSION
The credible evidence summarized above shows that the
Union initiated its organizational effort at Respondent's
plant about June 12, 1974. Employees signed union cards
and attended union meetings. Employees also solicited
their coworkers to sign union cards. Plant Manager Foster
acknowledged that about June 20 employee Hutchins re-
vealed to him that there was union activity in the plant.
Foster also questioned his supervisors "if they had heard
anything about Union activity." Shortly thereafter, Cus-
tomer Service Laboratory Supervisor Vassey apprised
Plant Manager Foster "that one of the girls [in her Labora-
tory] told her [Vassey] about the activity in the Service
Laboratory." And, Company President Thornton acknowl-
edged that about June 23 or 24,
I [Thornton] was told by Mr. Foster that we had
Union activity in the Customer Service Lab, and then
101 have credited the testimony , as recited above in sec . 11, A, B, and C,
of employees Pugh , Wease , Carnes, Holcomb , Dodkin , Coggins, Taylor,
Austin , Sandra Thornton , Guyton, Linda Thornton, and Williams. Their
testimony , as recited above, is in part mutually corroborative and is also
substantiated in part by testimony of Company President Thornton, Plant
Manager Foster , and Head of Research Poltersdorf . Supervisor Vassey, as
stated , although present at the hearings , did not testify . And, upon the entire
record before me, and relying also upon the demeanor of the witnesses, I
find that the above testimony of employees Pugh , Wease, Carnes, Holcomb,
Dodkin , Coggins, Taylor, Austin, S. Thornton, Guyton, L. Thornton, and
Williams is trustworthy and reliable . Insofar as the testimony of Company
President Thornton, Plant Manager Foster , and Head of Research Polters-
dorf conflicts with the above employee testimony , I do not credit the testi-
mony of Thornton, Foster , or Poltersdorf . On this record, I am persuaded
that management 's representatives in fact made the statements attributed to
them by the employee witnesses , as detailed above
However, I encounter greater difficulty with respect to the conflict posed
by the testimony of employee Guyton, Supervisor Littlejohn, and employee
Edwards concerning Littlejohn's statement to Edwards on July 18 or 19,
1974, as quoted above . Having reviewed their testimony , I am persuaded on
this record , and relying upon the demeanor of the witnesses , that Supervisor
Littlejohn in fact made the statement attributed to him by employee Guy-
ton. I was not persuaded by and do not credit Littlejohn's general denial of
Guyton's testimony or the denial elicited from employee Edwards.
It is undisputed and I find and conclude that Company President Thorn-
ton, Plant Manager Foster, Head of Research Poltersdorf , Supervisor Vas-
sey, and Supervisor Littlejohn are agents and supervisors of Respondent
within the meaning of Sec . 2(11) of the Act.
I was told by [Supervisor] Vassey that we also had
Union activity in the Customer Service Lab.... Mrs.
Vassey indicated to me that the number was probably
substantial , engaged in the activity... .
Management , in resisting this organizational effort, en-
gaged in the following conduct:
A. Threats and Coercive Interrogation
Customer service employee Pugh credibly testified that
Plant Manager Foster called her into his office about June
26. No one else was present. Foster apprised Pugh that he
had "heard that there was some trouble down in the Cus-
tomer Service Lab.... " Foster asked Pugh if she knew
"what the trouble was." Foster, at the same time, informed
Pugh that "he thought [she] knew a lot more than [ she] let
on.... " Foster also remarked to Pugh that "someday"
the "supervisor's job" in customer service "would be va-
cant" and if Pugh "knew [she] was going to get it, would
[she] still" rather work under the supervision of a man in-
stead of a woman. Vassey, as noted, was then Pugh's super-
visor. Customer service employee Wease was similarly
questioned by Foster in his office. Thus, about July 10,
Foster called Wease into his office for the "first time" dur-
ing her employment. Foster apprised Wease that "he knew
there was trouble within our Lab and within the plant";
"that there was between three to five troublemakers in our
Lab"; and "that those people had to be dealt with and the
unrest had to be straightened out.... " Foster, at the
same time, warned employee Wease that "the middleman
could be hurt if he stayed in the middle." Foster subse-
quently repeated this warning to Wease in the plant park-
ing lot on July 17, following the layoff of the six employees.
In addition, Foster openly asked employees working in the
customer service laboratory "when is the Union going to
get off the ground" or "get started" or "get going strong."
Section 7 of the National Labor Relations Act guaran-
tees employees "the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities," as well as the right "to
refrain from any or all such activities." Section 8(a)(1) of
the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees" in the
exercise of their Section 7 rights. The "broad purpose of
Section 8(a)(1) is to establish `the right of employees to
organize for mutual aid without employer interference'
.. " N. L. R. B. v. Exchange Parts Company, 375 U.S.
405, 409-410 (1964). And, an employer violates Section
8(a)(1) by engaging in conduct "calculated to create the
impression that the employer was on guard for union activ-
ity and intended if need be to take measures designed to
prevent the union from gaining a foothold." Dubin-Haskell
Lining Corp. v. N.L.R.B., 375 F.2d 568, 571 (C.A. 4, 1967),
modified en banc on other grounds 386 F.2d 306 (C.A. 4,
1968), cert. denied 393 U.S. 824 ( 1968). In assessing em-
ployer conduct under Section 8(a)(1), the courts have noted
that the "employee is sensitive and responsive to even the
most subtle expression on the part of his employer, whose
good will is so necessary" for continued employment.
BLACKMAN-UHLER CHEMICAL DIVISION
N.L.R.B. v. Griswold Manufacturing Company, 106 F.2d
713, 722 (C.A. 3, 1939); N. L R B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 618-620 (1969). And, the "test" of inter-
ference , restraint, or coercion under Section 8(a)(1) is
"whether the employer engaged in conduct which, it may
reasonably be said , tends to interfere with the free exercise
of employee rights under the Act." See Time-O-Matic, Inc.
v. N.L.R.B., 264 F.2d 96, 99 (C.A. 7, 1959).
Applying these principles here, I find and conclude that
Respondent Company violated Section 8(a)(1) of the Act
as a result of Plant Manager Foster's interrogation of em-
ployees Pugh and Wease. The employees were called away
from their work stations and questioned by the plant man-
ager alone in his office . They were given no assurances
against reprisals . They were asked, inter alia, if they knew
"what the trouble was." There could be no doubt that Fos-
ter was referring to the pending union effort. Foster admit-
tedly wanted to discover why the employees were "malcon-
tent." Foster made clear to employee Pugh that he had
"heard that there was some trouble" in her laboratory and
"he thought [she] knew a lot more than [she] let on." Foster
also referred to the possibility that employee Pugh might
be promoted to the supervisor's position in her section and
asked Pugh how that affected her views. In like vein, Fos-
ter admonished employee Wease that "there was between
three to five troublemakers in our Lab"; that "those people
had to be dealt with and the unrest had to be straightened
out"; and, at the same time , cautioned employee Wease
that "the middleman could be hurt if he stayed in the mid-
dle." Foster also openly asked employees in the customer
service laboratory, in effect, when is the Union "going to
get off the ground or "get going strong."
I find and conclude, on this record, that the foregoing
interrogation of employees by upper management, accom-
panied by threats that employee "troublemakers" had "to
be dealt with" and the "middleman could get hurt if he
stayed in the middle," plainly tends to interfere with em-
ployee Section 7 activities, in violation of Section 8(a)(1) of
the Act.
B. The Layoffs
Respondent asserts that the six employees in the custom-
er service laboratory-Coggins, Pugh, Carnes, Taylor,
Dodkin , and Holcomb-were laid off for economic rea-
sons . The question raised here is whether Respondent, in
summarily laying off these six employees on July 12, 1974,
was motivated by an unlawful purpose. For, under settled
law, "the Board is not compelled to accept the employer's
statement" of the reason for the employee layoff "when
there is reasonable ground for believing that the ground
put forward by the employer was not the true one and that
the real reason was the employer 's dissatisfaction with"
employee union activities. Great Atlantic & Pacific Tea Co.
v. N.L.R.B., 354 F.2d 707, 709 (C.A. 5, 1966). And, as the
court stated in N.L. R.B. v. Hanes Hosiery Division, Hanes
Corp., 413 F.2d 457, 458 (C.A. 4, 1969):
Undoubtedly, the fact that a worker takes part in
protected activity does not insulate him from dis-
charge for legitimate business reasons . . . . But busi-
57
ness reasons may not be used as a pretext for a dis-
criminatory firing. N.L.R.B. v. Overnite Transp. Co.,
308 F.2d 284, 288 (4th Cir. 1962). And if a desire to
stifle protected activity is a factor in the employer's
decision, the discharge is discriminatory. Winchester
Spinning Corp. v. N.L.R.B., 402 F.2d 299, 304 (4th Cir.
1968); N.L.R.B. v. Dove Coal Co., 369 F.2d 849, 852
(4th Cir. 1966).
In the instant case, the credible evidence recited supra
shows that there had been no layoffs at Respondent's plant
for some 10 years prior to the Union's recent organiza-
tional effort. The Union commenced its campaign about
June 12, 1974. The six employees in the Respondent's cus-
tomer service laboratory signed union cards and partici-
pated in organizational activities. About June 20, Plant
Manager Foster was first informed by an employee of the
union activity. Customer Service Laboratory Supervisor
Vassey also informed Foster "about the activity in the Cus-
tomer Service Laboratory." As Foster acknowledged, Su-
pervisor Vassey "told me [Foster] that one of her girls had
told her that there was Union activity." And Company
President Thornton acknowledged that about June 23 or
24 he too "was told by" Plant Manager Foster "that we
had Union activity in the Customer Service Laboratory."
President Thornton further acknowledged that Supervisor
Vassey "indicated to me [Thornton] the number" of em-
ployees engaged in union activity in the customer service
laboratory "was probably substantial." Thereafter, Plant
Manager Foster quizzed employees working in the custom-
er service laboratory, commencing about June 26. Foster
admittedly wanted to find out why the employees "were
malcontent." As discussed above, Foster interrogated the
employees about protected union activities and threatened
them with reprisals, in violation of Section 8(a)(1) of the
Act. Thereafter, on Friday, July 12, 1974, without any ad-
vance notice and without being permitted to finish out
their shift that day, six employees in the customer service
laboratory were summarily laid off. Plant Manager Foster
claimed that he was first informed of the layoff from Com-
pany President Thornton on the prior day, Thursday, July
11. The remaining five or six employees working in the
customer service laboratory were promptly given pay raises
because, according to Company President Thornton, "the
employees that would be remaining would have to assume
a little bit more work than they had been doing." No other
plant employees received this increase." Employees per-
forming "similar work in other laboratories, with less se-
niority than the laid-off workers, were unaffected by this
layoff. Work previously performed by the laid-off employ-
ees was transferred to other laboratories. Supervisor Vas-
sey was required to start performing rank-and-file labor.
On this record, I am persuaded that the real reason for
Respondent's sudden and unusual termination of the six
employees in the customer service laboratory was to dis-
courage union support among the remaining plant employ-
ees. Upper management-by summarily terminating these
11 The laid-off workers, like other plant employees, had received pay rais-
es shortly prior to their July 12 layoff There were no subsequent layoffs at
the plant for over 3 months.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
six union supporters in the customer service laboratory
where union activity was admittedly known to be "sub-
stantial"-was motivated in substantial part by a purpose
to undermine employee support for the Union. Plant Man-
ager Foster had warned employee Wease only 2 days earli-
er:
... he [Foster] knew there was trouble within our Lab
... there were between three to five troublemakers in
our Lab . . . those people had to be dealt with and the
unrest had to be straightened out... .
No other plant employees were affected by this layoff. No
attempt was made by management to select for layoff less
senior employees in other laboratories or departments
doing "similar" work. And the remaining five or six cus-
tomer service workers were promptly given a weekly pay
increase.
Moreover, this finding of unlawful purpose is buttressed
by the weaknesses of Respondent 's asserted economic de-
fense . President Thornton claimed, inter alia, that he laid
off these six employees because he, in effect, did not have
work for the employees to do. However, the remaining cus-
tomer service employees were required to do additional
work; the remaining customer service employees were giv-
en a weekly pay raise because of this additional work; Su-
pervisor Vassey was required for the first time in years to
perform rank-and-file labor; and work was transferred
from customer service to other laboratories. Further, Presi-
dent Thornton claimed that "Our sales and profits were
down"-"I had to start cutting some overhead cost any-
where that I could without further damaging our market
position." However, as Thornton also acknowledged, "our
sales were already much better than production " at least in
Bucrons ; "our back order list stayed too long all the time";
"we were so far out-stripping our production that we
couldn't fill customers' orders"; the plant employees-in-
cluding those in customer service-had been given raises
only weeks before the layoffs; there were no other layoffs
in the plant for some 10 years prior to and over 3 months
following the July 12 layoff; and the "greater majority" of
adverse economic conditions which ultimately beset the
textile industry and Respondent in fact occurred in the
latter part of July and August 1974.12
i2 Compare: "Nine Months Report to Stockholders," dated June 30, 1974,
for Synaltoy Corporation, the parent of Respondent , which states, in part
(G.C. Exh. 2).
Net income for the nine months ended June 30, 1975, exceeded the
highest earnings for any fiscal year in the 29 year history of the Compa-
ny [Synalloy Corporation ]. Although the third quarter results were un-
usually strong, based on the current backlogs in our Metal Divisions
and increased production and sales in our Chemical Division's Dis-
perse Dye Program , management anticipates the operations of the
Company will continue to grow
and counsel for Respondent 's assertion in his brief:
By July 1974, however, production [at Respondent's plant] was still
somewhere under $2,000,000, although Thornton felt they could easily
have sold $5,000,000 or $6,000,000. The problem, he testified, was simply
a production problem-and at that point too many sales in Bucrons (Tr.
445, 446). [Emphasis supplied .] At the same time, profits were continu-
ing to suffer, too. Profits for June 1974, amounted to $10,727, or 1.0%,
as compared to $53,329 or 4.7% for June 1973; and a nine month figure
of 5.5% for 1974, as contrasted to 8.2 % for the like period in 1973.
In sum, although the evidence shows that Respondent in
fact has experienced some economic problems, I find and
conclude, on this record, that Respondent's treatment of its
six employees on July 12 was not in response to these eco-
nomic problems; rather, I find and conclude that
Respondent's July 12 determination was unlawfully moti-
vated, in violation of Section 8(a)(1) and (3) of the Act.
C. The Pay Raise and Other Coercive Conduct
As stated, immediately following the layoff, the remain-
ing customer service laboratory employees were given sal-
ary increases. The question raised is whether these increas-
es, under the circumstances present here, violated Section
8(a)(1) of the Act.
In N.L.R.B. v. WKRG-TV, Inc., 470 F.2d 1302, 1037-08
(C.A. 5, 1973), the court dealt with a similar issue , stating,
in part, as follows:
In essence, the company argues that it cannot be fault-
ed for granting benefits to its employees when such
benefits were not motivated by an anti-union animus.
We are in full agreement with the company. Certainly
any rule that would prevent the granting of employee
benefits in the absence of an anti-union effect , either
intended or foreseeable, would go too far and it is not
impossible to envision a factual situation where a
grant of benefit during a campaign would be permissi-
ble. E.g., N.L.R.B. v. M.H. Brown, Co., 2 Cir. 1971,
441 F.2d 839, 842-843; Wilkinson Mfg. Co. v. N.L.R.
B., 8 Cir. 1972, 456 F.2d 298, 303. But this is not such
a case.
*
A company may in its employee relations be sin-
cerely noblesse oblige, but its nobility of purpose and
spirit must not be anti-union motivated. The union is
not put to proving the absolute of anti-unionism, but
the Examiner and Board are free to engage in the eco-
logical atmosphere of 8(a)(1) violations. The Examiner
and Board have every right to conclude that the man-
na dropping from heaven were based upon fear that
sustenance would flow from unionization. We cannot
ignore decisional acceleration in employee benefits
preceded by months of lethargy. Lightning struck only
after the union's rod was hoisted. In this case the wage
readjustments and other benefits, to say nothing of the
initial announcement of these benefits, were clearly a
counterweight to [the union's] organization efforts. To
permit a company to time its announcement and allo-
cation of benefits in such a fashion would be a great
disservice to the ideal of organizational freedom so
deeply imbedded in the N.L.R.A.
In the context of management's demonstrated union ani-
mus, its threats and coercive interrogation, and the unlaw-
ful discharge of the six employees, I find and conclude that
this raise was also part of Respondent's attempt to defeat
(Employers Exhibit R 1(b) and 1(n)). The 1974 six month figures (to
March 31 , 1974) for the Chemical Division amounted to $228 , 511, as
contrasted to the 1973 six month figures of $554,883 (Tr. 530; Resp.
Exh. 11; Resp.Exh. 1(k) ).
BLACKMAN-UHLER CHEMICAL DIVISION 59
the Union's organizational effort.
Further, I find and conclude that Head of Research Pol-
tersdorf violated Section 8(a)(1) by repeating to employees
that he had asked Burnham Uhler "what happened down
there that they laid off those girls" and that Uhler had
replied: "[T]he last thing this Company needs is a damn
Union. ... " Poltersdorf, by stating this to employees, at-
tributed the July 12 layoff to the employees' union activi-
ties, in violation of Section 8(a)(l). In like vein, Supervisor
Littlejohn warned an employee that "if the Union was vot-
ed in" he "would no longer be [her] friend"; the Union
"was nothing but trouble"; and the employee "would not
be sitting on a stool" but instead "would be walking a
picket line." These statements also plainly tend to deter
employees from exercising their Section 7 rights in viola-
tion of Section 8(a)(1).
IV. THE CHALLENGED BALLOTS
There were, as stated, 11 challenged ballots in the related
representation proceeding. It was stipulated before me that
the challenges to the ballots cast by Crocker and Nichols
should be sustained. And, as the parties agree , the five
challenges to ballots cast by Holcomb, Taylor, Dodkin,
Pugh, and Coggins will be disposed of by the determina-
tion in the consolidated unfair labor practice case . Since I
have found that these five employees were unlawfully dis-
charged on July 12, the challenges to their ballots are over-
ruled. As for the remaining four challenged ballots, I make
the following findings of fact and conclusions of law:
A. Debbie Peeler
Peeler is secretary to Plant Manager Foster. She answers
his telephone as well as the telephones for Assistant Plant
Manager Strickler and Head of Research Poltersdorf. Peel-
er performs various typing services for Foster, Strickler,
and Poltersdorf. She spends half or more of her worktime
in her office, which is adjacent to Foster's office. Peeler
types memoranda for Foster. She also processes employee
workmen's compensation claims. Thus, for example, she
calls doctors, makes arrangements for employees to be ex-
amined by doctors, and fills out the necessary forms and
reports. She also "runs errands" for Foster and other repre-
sentatives of management.
Unlike other plant employees, Peeler parks her automo-
bile inside the plant gate. She does not punch a timeclock.
She has an office with a desk and xerox machine. She
dresses differently than production workers. Plant Manag-
er Foster admittedly has referred to Peeler as his secretary.
The agreed-upon bargaining unit (see Regional
Director's report, G.C. Exh. 1 (j), p. 1, In. 1) consists of:
"all production and maintenance employees, including lab-
oratory employees, truckdrivers, and plant clerical employ-
ees at the Employer's Camp Croft, South Carolina, plant,
excluding all office clerical employees, guards, professional
employees and all supervisors defined in the Act." (Em-
phasis supplied). As the Regional Director states in his re-
port, Peeler was challenged on the ground that she was the
"secretary to the plant manager" and a "confidential em-
ployee." I find and conclude, as stated, that Peeler is in fact
secretary to Foster and an "office clerical." She works in a
separate office area away from production; she is directly
supervised by upper management; her working contact
with production employees is, by and large, minimal; and
her duties include in substantial part office clerical work
and secretarial work for Foster. Peeler's access to
workmen's compensation claims of employees and her
close working relationship with Plant Manager Foster per-
suade me that she is his "secretary," an "office clerical,"
and, alternatively, a "confidential employee." 13 I would
therefore sustain the challenge to her ballot.
B. Floyd Morton
Petitioner challenged the ballot of Morton, asserting that
Morton has "supervisory authority." (G.C. Exh. 10).)
Supervisor Littlejohn, according to the testimony of em-
ployee Gene Henline, told a group of employees about a
year ago that Floyd Morton "would have to be his number
two man to tell us what to do." Supervisor Littlejohn cor-
roborated Henline in this respect. Littlejohn testified:
Q. And you [Littlejohn] testified earlier that you had
a meeting and you told the workers at that meeting
that Mr. Morton was your No. 2 man?
A. That's correct; absolutely correct.
Q. So, if he is your No. 2 man, he has more authority
than anybody else, hasn't he?
A. When he is around. When Mr. Morton is not
around, I do instruct these other two.
Q. But if Mr. Morton is there you go strictly through
Mr. Morton?
A. Yes, if he's available, yes, that's true.
Littlejohn further testified:
Q. And it is his [Morton's] responsibility to see that
they do the work isn't it?
A. Yes. It is his responsibility to see that it is done
right.
Q. Other employees under him know that they are
supposed to do what Mr. Morton tells them to,
tJ Plant Manager Foster testified , inter a/ia, that Peeler "prepares the out-
standing order sheet everyday"; maintains "all inventory records" and does
inventory work; prepares "any memos that I have done or letters "; answers
the telephone for him and Poltersdorf ; "runs errands periodically"; picks up
mail; prepares production reports for him ; and is responsible for "internal
traffic ." Foster acknowledged that he "may have" stated that Peeler is his
secretary.
Peeler claimed that she is in "Internal Traffic" and does "daily work
sheets," inventories , and typing for the various departments . She types pur-
chase orders and monthly production forms. She "sometimes" works in
manufacturing "to help out ." She has a desk in the office next to Foster. She
answers his telephone . She also answers Strickler 's and Poltersdorf s tele-
phone. She types letters for Foster. She spends 50 percent of her time in the
office doing reports. She parks inside the gate , runs errands, and does not
punch the timeclock . Peeler admittedly has "access to files in Foster's of-
fice." She handles workmen's compensation procedures , as stated above.
Foster "occasionally" refers to her its his secretary.
Employee Wease also testified that Plant Manager Foster said, in the
presence of Supervisor Vassey, that Debbie Peeler "was the most efficient
secretary that he had ever had ." To the same general effect , see the related
testimony of employees Pugh , Taylor, Austin, and Green. I credit the testi-
mony of Peeler, Foster, Wease , Pugh, Taylor, Austin, and Green, as summa-
rized above. Their testimony, as stated above, is in large part mutually
corroborative and impressed me as reasonable and trustworthy.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right?
A. That's correct.
Q. And if they don't, something is going to happen to
them?
A. That's correct.
Morton, according to Littlejohn, makes "more" money
than the other employees in his department, except for
Littlejohn. Morton has no machine assigned to him; he
spends at least 80 percent of his time "watching or instruct-
ing other employees." Morton gives employees their pay-
checks and makes daily work assignments. Littlejohn ac-
knowledged that it is "possible" that Morton has
recommended employees for pay raises. And, according to
employee Henline, Morton once said that he had terminat-
ed employee Paul Davis.14
A "supervisor" is defined in Section 2(11) of the Act as,
[A]ny individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical, or rulebook authori-
ty. It is well settled that a rank-and-file employee cannot be
transformed into a supervisor merely by investing him or
her with a "title and theoretical power to perform one or
more of the enumerated functions." Cf. N.L.R.B. v. South-
ern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A.
4, 1958), cert. denied 359 U.S. 911 (1959). What is relevant
is the actual authority possessed and not the conclusory
assertions of a company's officials. And while the enumer-
ated powers listed in Section 2(11) of the Act are to be read
in the disjunctive, the section also "states the requirement
of independence of judgment in the conjunctive with what
goes before." Cf. Poultry Enterprises, Inc. v. N.L.R.B., 216
F.2d 798, 802 (C.A. 5, 1954). Thus, the individual must
consistently display true independent judgment in per-
forming one of the functions in Section 2(11) of the Act.
The exercise of some supervisory tasks in a merely routine,
clerical, perfunctory, or sporadic manner does not elevate a
rank-and-file employee to the supervisory ranks. Cf. N.L.
R.B. v. Security Guard Service Inc., 384 F.2d 143, 146-149
(C.A. 5, 1967). Nor will the existence of independent judg-
ment alone suffice; for "the decisive question is whether
[the individual involved has] been found to possess authori-
ty to use [his] independent judgment with respect to the
exercise by [him] of some one or more of the specific au-
thorities listed in Section 2(11) of the Act." N.L.R.B. v.
14 Cf. Resp. Exh. 14 , which states that Littlejohn "authorized" Davis'
termination . Morton claimed , Inter alm, that he is a "Class A" chemical
operator ; that he does not possess supervisory authority ; and that he acts, in
effect , as a "conduit" for Littlejohn. In addition, Plant Manager Foster
testified that there are some 12 to 15 "Class A" chemical operators and that
Morton 's "authority over people in the Company" is the "same" as the
other "Class A" operators.
I credit the testimony of Littlejohn and Henline, as recited above. Their
testimony is substantiated in part by the testimony of Morton and Foster
and impressed me as reliable and trustworthy.
Brown & Sharpe Manufacturing Company, 169 F.2d 331,
334 (C.A. 1, 1948). In short, "some kinship to management,
some empathetic relationship between employer and em-
ployee must exist before the latter becomes a supervisor for
the former." N. L.. R.B. v. Security Guard Service, Inc., supra,
384 F.2d at 149.
Applying these principles here, I find and conclude that
Morton possessed supervisory authority. And I am per-
suaded that his exercise of supervisory functions was not
merely routine, clerical, perfunctory, or sporadic. In sum,
there was here a "kinship to management"-an "empathet-
ic relationship between employer and employee" (ibid.)
Thus, employees were told by Supervisor Littlejohn that
Morton was "his No. 2 man." Morton had "more authori-
ty" than "anyone else" in the department. Littlejohn in-
structed employees, "when Morton was not around."
Otherwise, Morton instructed the workers. Morton was
"responsible" to "see that they do the work." Rank-and-
file employees understood that they must do what Morton
told them to do, or face the consequences. Morton was
higher paid than the other employees. He spent 80 percent
of his time "watching" and "instructing" employees. He
could recommend workers for pay raises and he made dai-
ly work assignments . I find and conclude that, on this rec-
ord, Morton is a supervisor and the challenge to his ballot
should be sustained.
C. Robert Walker
Robert Walker's ballot is challenged by Petitioner be-
cause he assertedly is a supervisor. Employee Daniel
Green, a truckdriver, testified that he has worked in the
Company's shipping department for about 3 years; that
Robert Walker "hired" him after interviewing him for
some 15 to 20 minutes; that Robert Walker told him what
his rate of pay would be; that Robert Walker gives him his
daily work assignments ; that when he was out sick or need-
ed time off he called Robert Walker; that Robert Walker
assigned him overtime work; that Robert Walker drove a
"Company vehicle" to and from work; and that he, Green,
spoke with Robert Walker about pay raises. Employee
Green explained on cross-examination that "Mr. Walker
describes which load we are to take" on deliveries; "[the
drivers] ask him [Walker] if it's all right." In addition, em-
ployee Charles Walker testified that Robert Walker inter-
viewed him for employment; that he "reported" to Robert
Walker; and that Robert Walker told him what his rate of
pay and job would be.15
15 Plant Manager Foster asserted that Robert Walker is a "warehouse-
man" with no supervisory authority. Foster claimed that Richard Crocker is
the supervisor in charge of the department Likewise, Robert Walker
claimed that he is a "warehouseman" and that he "reports " to Crocker.
Robert Walker denied the authority attributed to him by Green and C.
Walker. Robert Walker was, I note, an evasive witness on cross-examina-
tion. However , he acknowledged accepting employment application blanks
because "Crocker would not be available , and maybe they [the applicants]
would set down with me." Robert Walker acknowledged that Crocker in
fact has "two offices"-one "downstairs in the front of the warehouse" and
another office "upstairs in front ." Crocker, according to Robert Walker, is
"in charge of Shipping & Receiving" and "Purchasing ." Robert Walker
acknowledged that Crocker "spends more time up front" and not in Ship-
ping. Robert Walker frequently gives employees their paychecks. Cf Resp.
Exh. 6 (Green's application for employment ) and Resp . Exh. 5(a) through
(d) (applications for C. Walker), which do not show the signatures or ap-
BLACKMAN-UHLER CHEMICAL DIVISION
I find and conclude that the credible testimony suffi-
ciently establishes that Robert Walker, like Floyd Morton,
was a supervisor . Robert Walker interviewed and hired em-
ployees. He instructed employees what their job duties and
pay rates would be. He gave them daily work assignments.
Employees called Robert Walker for time off. He assigned
overtime. He drove a "Company vehicle" to and from
work. Employees spoke with him about pay raises. I would
therefore sustain the challenge to his ballot.
D. Raymond Roberts
Petitioner also challenged the ballot of Raymond Rob-
erts, asserting that he is a supervisor. There is much testi-
mony to the effect that Roberts, at one time, was in charge
of plant "clean-up." However, there is testimony that Rob-
erts is currently in charge of waste treatment and that he
no longer supervises personnel. There is also testimony by
employees that Roberts stated that he had terminated em-
ployees Alverson and Miller. However, as discussed below,
I am not sufficiently persuaded on this record that Roberts
in fact possesses supervisory authority.
Thus, for example, employee Cynthia Dodkin testified
that Roberts now works in "filtration." Dodkin recalled
that Roberts told her that he "had to let [Alverson] go
because of [Alverson's] drinking." Dodkin also recalled
Roberts taking credit for the firing of another employee,
Ed Miller. Employee Carolyn Pugh recalled how Roberts
gave instructions to janitors and exercised authority over
them; however, Roberts, as noted, is now in the "filtration"
section . Pugh also witnessed Roberts claim credit for the
firing of employee Alverson. Employee Ruth Austin testi-
fied that Roberts "had a clean-up detail" and, assertedly,
he had one person in this detail at the time of the represen-
tation election.
Jesse Alverson testified that Roberts had hired him and
told him what his rate of pay would be. Roberts assigned
Alverson his job, which involved cleaning the plant. Alver-
son acknowledged that Paul Blackwell is Roberts' supervi-
sor and both Roberts and Blackwell were present when
Alverson was terminated. However, Paul Blackwell credi-
bly testified that he had hired Alverson and had fired him
for "drinking." (See Resp. Exh. 3, Alverson's termination
notice, "authorized" by Blackwell and dated June 27,
1974.) Blackwell also credibly testified that he had termi-
nated Ed Miller. (See Resp. Exh. 4, Miller's termination
notice , "authorized" by Blackwell and dated October 5,
1973.) Blackwell explained that "janitorial personnel are
assigned to the maintenance department and work under"
his supervision. Blackwell testified:
Q. How many janitorial employees do you have there
now?
A. One.
proval of Robert Walker.
Upon this record , I credit the testimony of employees Charles Walker and
Green as stated above. Insofar as the testimony of Foster and Robert Walk-
er differ with the testimony of Charles Walker and Green , I find the testi-
mony of Charles Walker and Green to be more forthright, complete, and
trustworthy.
61
Q. What is his name?
A. Ellis Lowe.
Q. Is Mr. Roberts in any way connected with the su-
pervision of Ellis Lowe?
A. Direct supervision, no.
Q. Has Mr. Roberts ever been connected with super-
vision of janitorial people?
A. Yes, he has.
Q. When was that, sir?
A. About two years ago.
Q. About how long?
A. Two years ago.
Q. And what was he doing at that time?
A. That was his job, in charge of janitorial employees,
the fire extinguishers and, well, that was it, and the
outside yard work.
Q. Now, has any change been made in this arrange-
ment?
A. Yes, sir.
Q. What does Mr. Roberts do at the present time?
A. Well, they cut out all the outside yard work which
reduced his staff from, probably from six to eight, to
one or two, and then Raymond was transferred to
waste treatment that was started up about that time.
Q. What is waste treatment?
A. That is where they treat the waste sewage before
they dump it into the city sewage.
Q. What hours does Mr. Roberts work at that, sir?
A. He is from 8 to 4, right now.
Raymond Roberts testified that he no longer runs the
"clean-up" operation. He denied hiring or terminating Al-
verson or terminating Miller. He denied, inter alia, taking
credit for their termination.
I am not sufficiently persuaded on this record that Rob-
erts is in fact a supervisor. Blackwell, who impressed me as
a credible witness, corroborated Roberts in substantial
part. Alverson, on the other hand, was not a reliable wit-
ness . And, although there is some question in my mind that
Roberts may still have been connected with "clean-up"
work at times material to this proceeding, the record is
insufficient and unclear in this respect. I would therefore
overrule this challenge.
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Charging Party-Petitioner is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Company violated Section 8(a)(1) and (3)
of the Act by coercively interrogating employees about em-
ployee union activities; by threatening employees with
harm and other reprisals because of employee union activi-
ties; by granting employees a wage increase in order to
undermine employee support of the Union; by attributing
the layoff of six employees to employee union activities;
and by laying off on July 12, 1974, employees Coggins,
Pugh, Carnes, Taylor, Dodkin, and Holcomb in order to
discourage employee union activities.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. With respect to the 11 challenged ballots in the con-
solidated representation proceeding (Case 11-RC-3936),
for the reasons stated in section IV, supra, I would overrule
the challenges to the ballots cast by Holcomb, Taylor,
Dodkin, Pugh, Coggins, and Roberts. I would sustain the
challenges to the ballots cast by Nichols, Crocker, Walker,
Morton, and Peeler.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it cease and desist from
such conduct and take certain affirmative action designed
to effectuate the policies of the Act. And, as the unfair
labor practices committed by the Respondent are of a
character striking at the core of employee rights safeguard-
ed by the Act, I recommend that it cease and desist from in
any other manner infringing upon rights guaranteed in
Section 7 of the Act.
It has been found that Respondent, in violation of Sec-
tion 8(a)(1) and (3) of the Act, unlawfully laid off on July
12, 1974, employees Coggins, Pugh, Carnes, Taylor, bod-
kin, and Holcomb. It will therefore be recommended that
Respondent offer employees Coggins, Pugh, Carnes, Dod-
kin, and Holcomb 16 immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make employ-
ees Coggins, Pugh, Carnes, Taylor, Dodkin, and Holcomb
whole for any loss of earnings suffered by reason of their
unlawful layoff by payment to them of a sum of money
equal to that which they normally would have earned from
the date of the discrimination to the date of Respondent's
offer of reinstatement , less net earnings during such period,
with backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950). Backpay shall carry interest at the rate
of 6 percent per annum, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). Further, it will be rec-
ommended that Respondent preserve and make available
to the Board, upon request, all payroll records, social se-
curity payment records, timecards, personnel records and
reports, and all other records necessary and useful to de-
termine the amount of backpay due and the rights of rein-
statement under the terms of these recommendations.
ORDER17
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case,
Respondent Blackman-Uhler Chemical Division-Synal-
loy Corporation, Spartanburg, South Carolina, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with harm or other reprisals
because of employee union activities.
(b) Coercively interrogating employees about union ac-
tivities.
(c) Granting employees a wage increase in order to un-
dermine employee support of International Molders & Al-
lied Workers Union, AFL-CIO-CLC, or any other labor
organization.
(d) Attributing the layoff of employees to employee
union activities.
(e) Discouraging membership in the Union or in any
other labor organization by unlawfully discharging any of
its employees or in any other manner unlawfully discrimi-
nating against them with respect to their hire, or tenure of
employment, or any term or condition of employment.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to employees Coggins, Pugh, Carnes, Dodkin,
and Holcomb immediate and full reinstatement to their
former jobs or, if their former jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make whole
employees Coggins, Pugh, Carnes, Taylor, Dodkin, and
Holcomb for any loss of earnings, in the manner set forth
in this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its offices and plant facilities in Spartanburg,
South Carolina, copies of the attached notice marked "Ap-
pendix." 18 Copies of said notice, on forms provided by the
Regional Director for Region 11, after being duly signed
by Respondent's authorized representative, shall be posted
immediately upon receipt thereof, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted, and shall be maintained by it for a period
of 60 consecutive days. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the date of this Decision what
steps Respondent has taken to comply herewith.
16 The record shows that Taylor has been reinstated by Respondent.
17 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order and objections thereto shall be deemed
waived for all purposes
is In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
BLACKMAN-UHLER CHEMICAL DIVISION 63
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence , the National Labor Relations Board
has found that the Blackman -Uhler Chemical Division-
Synalloy Corporation has violated the National Labor Re-
lations Act and ordered us to post this notice. We therefore
notify you that:
WE WILL NOT threaten our employees with harm or
other reprisals because of employee union activities.
WE WILL NOT coercively interrogate our employees
about employee union activities.
WE WILL NOT grant employees wage increases in or-
der to undermine employee support of International
Molders & Allied Workers Union , AFL-CIO-CLC,
or any other labor organization.
WE WILL NOT attribute the layoff of our employees to
employee union activities.
WE WILL NOT discourage membership in the Union
or in any other labor organization by unlawfully dis-
charging any of our employees, or, in any other man-
ner, unlawfully discriminating against them with re-
spect to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT, in any other manner, interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL offer employees Vivian Coggins, Carolyn
Pugh, Lynn Carnes, Cynthia Dodkin, and Cynthia
Holcomb immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and WE
WILL make employees Vivian Coggins, Carolyn Pugh,
Lynn Carnes, Brenda Taylor, Cynthia Dodkin, and
Cynthia Holcomb whole for any loss of earnings, with
interest at 6 percent per annum.
BLACKMAN-UHLER CHEMICAL DIVISION-SYNALLOY
CORPORATION