The Colson Corp.

National Labor Relations Board - Board Decisions

Sep 4, 1964

148 N.L.R.B. 827 (N.L.R.B. 1964)

THE COLSON CORPORATION
AIR MAIL
APPENDIX C
WILLIAM C . BRADLEY
Attorney at Law
3010 Ray Weiland Drive
Baker, Louisiana
April 25, 1964
Honorable George Bokat, Chief Trial Examiner
National Labor Relations Board
Washington 25, D.C.
Re: Edward G. Partin, et al.
Case No. 15-CB-622
827
Dear Mr. Bokat:
I desire to reply to your recent favor concerning the above captioned, and further
to request an opportunity for my client, Edward G. Partin, Business Agent General
Truck Drivers, Chauffeurs, Warehousemen & Helpers of America, Local No. 5, Affili-
ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Ind., to be given an opportunity to present evidence and further
to extend the time accordingly in which we might present our briefs in this matter.
When this case was re-convened on March 24, 1964, I did not appear and did not
present any evidence nor give any explanation for this non-appearance at that time,
nor ask for a continuance for the reason that on the morning of the re-convened hear-
ing, March 24, 1964, a message was left at my office stating that this hearing had
been cancelled and passed without date and would be re-scheduled. I had no reason
to doubt the veracity of this message, and accordingly, I did not appear.
As you are aware, the hearing was held with the complainant, Calvin C. Clary,
presenting testimony through his witnesses . I did not have an opportunity to cross-
examine any of these witnesses. Although I appreciate it to be impossible for these
witnesses to be recalled in order that I might cross-examine them, I consider it only
fair that we be permitted to at least be given an opportunity to adduce testimony of
our own in support of our position.
I will appreciate your good offices in allowing this matter to be continued so as to
permit us to present our evidence , and further to be continued a reasonable time
thereafter in order that we might submit a brief covering our position.
With all best wishes, I am
Yours very truly,
/s/ William C. Bradley
WILLIAM C. BRADLEY
WCB:jfd
cc: David L. McComb, Esq. Mr. Edward G. Partin,
T-6024, Federal Building Business Agent
701 Loyola Avenue Teamster Local Union No. 5
New Orleans, Louisiana 1675 Airways Drive
Roy Maughan and J. H. Bankston, Esqs. Baton Rouge, Louisiana
Maughan and Bankston
4539 Plank Road
Baton Rouge, Louisiana
The Colson Corporation and International Brotherhood of Boiler-
makers, Iron Ship Builders , Blacksmiths , Forgers and Helpers,
AFI-CIO . Case No. 14-CA-3075. September 4, 1964
DECISION AND ORDER
On April 20, 1964,- Trial Examiner Robert E. Mullin issued his De-
cision in the above -entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
148 NLRB No. 89.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Decision. With respect
to certain other unfair labor practice allegations, the Trial Examiner
recommended dismissal. Thereafter, the General Counsel, the Charg-
ing Party, and the Respondent filed exceptions to the Trial Examiner's
Decision; the General Counsel and the Charging Party filed briefs in
support of their exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning 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 Decision,
the exceptions and briefs, and the entire record in this case, and finds
merit in the exceptions of the General Counsel and the Charging
Party. We therefore adopt the Trial Examiner's findings, conclu-
sions, and recommendations only to the extent consistent herewith.
With respect to the allegation that the Respondent refused to bar-
gain with the Union on and after January 8, 1963, the Trial Examiner
found that the Respondent did not have a good-faith doubt as to the
Union's majority status. Nevertheless, he concluded that since the
Union had thereafter proceeded to a representation election, this con-
stituted a waiver under the Board's Aiello rule,' precluding a finding
of an earlier 8 (a) (5) violation. He also concluded that in view of his
disposition of the basic refusal-to-bargain charge, additional refusal-
to-bargain allegations with respect to unilateral plantwide wage in-
creases on March 27 and December 16, 1963, also had to be dismissed
because there was no independent showing of majority after the
election.
After the issuance of the Trial Examiner's Decision, the Board de-
cided in Bernel Foam Products Co., Inc.,' to reverse the holding in
Aiello, and to hold that a union's decision to proceed to an election
after an employer has refused to recognize it as the bargaining repre-
sentative of its employees does not foreclose the union from thereafter
asserting that the employer's earlier refusal to recognize was an un-
lawful refusal to bargain and from litigating that claim in an unfair
labor practice proceeding. Consequently, the merits of the refusal-to-
bargain allegations are still in issue.
The day the Union notified the Respondent of its organizing activi-
ties among the employees, the mayor of the city called a meeting of
prominent businessmen in the community to launch a campaign de-
signed to convince employees that if they voted a union in, The Colson
'Aiello Dairy Farms, 110 NLRB 1365.
9 146 NLRB 1277.
THE COLSON CORPORATION 829
Corporation might leave town. As some of these businessmen had
operated the R & R Corporation, which had originally operated the
Colson plant on Colson's behalf, and as the change in ownership had
not been publicized, the employees might weld have believed that these
businessmen were still connected with or at least were agents of the
Respondent. Like the Trial Examiner, and for the reasons detailed
in his Decision, we are convinced that the businessmen of Caruthers-
ville acted as agents for the Respondent in attempting to cause em-
ployees to abandon their interest in a union and to revoke or destroy
union authorization cards previously given to the Union. We also
agree that the interrogation of employees about their union sentiments
on the eve of a scheduled representation election and attempted sur-
veillance of employees' union activities were violative of Section
8 (a) (1). All of such conduct supports our conclusion that Respond-
ent's refusal to bargain was not motivated by a good-faith doubt about
the Union's majority status but was designed to gain time in which to
undermine the Union's majority.' We conclude that Respondent's re-
fusal to recognize and bargain with the Union on and after January 8,
1963, is violative of Section 8 (a) (5) and (1).
The Trial Examiner also concluded, on the basis of Aiello, that Re-
spondent's unilateral plantwide wage increases on March 27 and De-
cember 16, 1963, were not violative of Section 8 (a) (5). For the rea-
sons previously noted, Respondent was obligated to deal with the
Union as the bargaining representative of its employees. Therefore,
by granting unilateral wage increases without consulting with the
bargaining representative, the Respondent committed additional vio-
lations of Section 8 (a) (5). We shall, therefore, order the Respondent
to recognize and, on request, bargain with the Union as the duly desig-
nated bargaining representative of its employees in an appropriate
unit.
CONCLUSIONS OF LAW
1. The Colson Corporation is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
2. International Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO, is a labor organization
within the meaning of the Act.
3. All production and maintenance employees at the Respondent's
Caruthersville, Missouri , plant, excluding office clerical employees,
draftsmen, guards, professional employees , and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of collective
bargaining within Section 9(b) of the Act.
SJoy Silk MR18, Inc ., 85 NLRB 1263 , enfd. 185 F. 2d 732 (C.A.D.C.), cert. denied
341 U S. 914.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. At all times since January 8, 1963, International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths; Forgers and Helpers,
AFL-CIO, has been the exclusive representative of all the employees
in the aforesaid unit for the purpose of collective bargaining with re-
spect to rates of pay, wages, hours of employment, or other terms and
conditions of employment.
5. By refusing on January 8, 1963, and thereafter, to bargain with
the aforesaid labor organization, and by unilaterally granting wage
increases on March 27 and December 16, 1963, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) and (1) of the Act.
6. By interrogating employees about their union beliefs, by request-
ing employees to ascertain and report how fellow employees felt
toward the Union, and other illegal conduct after January 4, 1963, the
Respondent interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed by Section 7 of the Act, and thereby
engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. Respondent, by unlawfully refusing to rehire Henry White,
Nebert Davidson, Gene Harewell, and Leonard Pruitt on June 26,
1963, engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, The Colson Corporation , its officers , agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargaining collectively with International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL-CIO, as the exclusive representative of its employees
in the following appropriate unit:
All production and maintenance employees at the Respondent's
Caruthersville, Missouri, plant, excluding all office clerical employees,
draftsmen, guards, professional employees, and supervisors as defined
in the Act.
(b) Threatening employees with reprisal to discourage their affilia-
tion with, or support of, any labor organization; interrogating em-
ployees concerning union activities or affiliation; or aiding, abetting,
assisting, or cooperating, with any outside group of local citizens or
THE COLSON CORPORATION. 831
businessmen in any campaign designed to interfere with, restrain, or
coerce its employees in the exercise of their right to self-organization.
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization, to join
or assist International Brotherhood of Boilermakers , Iron Ship Build-
ers, Blacksmiths , Forgers and Helpers, AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for the pur-
pose of collective - bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the extent that such
rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized in Sec-
tion 8 (a) (3) of the Act , as amended.
(d) Refusing to reemploy or discharging its employees for engag-
ing in concerted activities for the purposes of their mutual aid or
protection.
2. Take the following affirmative action which is necessary to effec-
tuate the policies of the Act:
(a) Upon request , bargain collectively with International Brother-
hood of Boilermakers, Iron Ship Builders , Blacksmiths , Forgers and
Helpers, AFL-CIO, as the exclusive bargaining representative of
Respondent 's employees in the unit found appropriate with respect to
rates of pay , wages, hours of employment , and other terms and condi-
tions of employment , and, if an understanding is reached , embody
such understanding in a signed agreement.
(b) Offer to Henry White, Nebert Davidson , Gene Harewell, and
Leonard Pruitt immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority
or other rights and privileges , and make them whole in the manner
set forth in the section of the Trial Examiner's Decision entitled "The
Remedy."
(c) In the event any of the above-named employees are presently
serving in the Armed Forces of the United States notify them of their
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Serv-
ice Act of 1948, as amended , after discharge from the Armed Forces.
(d) Preserve and, upon request , make available to the Board or its
agents, for examination and copying , all payroll records, social se-
curity payment records, timecards , personnel records and reports, and
all other records necessary to analyze the amount of backpay due.
(e) Post at its place of business in Caruthersville , Missouri , copies
of the attached notice marked "Appendix . Copies of such notice, to
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the'United States Court of Appeals , Enforcing an Order."
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for Region 14, shall, after be-
ing duly signed by an authorized representative of the Respondent, be
posted immediately upon 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. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 14, in writing, within
10 days from the date of this Decision, what steps the Respondent has
taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, AFL-CIO, or in any other labor organization of our
employees, by discriminating in regard to hire, tenure of employ-
ment, or any term or condition of employment of any of our
employees.
WE WILL offer to Henry White, Nebert Davidson, Gene Hare-
well, and Leonard Pruitt immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
any seniority or other rights previously enjoyed, and make them
whole for any loss of pay suffered as a result of the discrimination
against them.
WE WILL NOT threaten our employees with reprisal, discourage
their affiliation with, or support of, any labor organization, nor
will we interrogate them concerning union activities or affiliation.
WE WILL NOT aid, abet, assist, or cooperate with any outside
group of local citizens or businessmen in any campaign designed
to interfere with, restrain, or coerce our employees in the exercise
of their self-organizational rights.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to join or assist the aforesaid Union or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
THE COLSON CORPORATION 833
membership in a labor organization as a condition of employment,
as authorized- in Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
THE COLSON CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serv-
ing in the Armed Forces of the United States of their rights to full
reinstatement upon application in accordance with the Selective Serv-
ice 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, 4459 Federal Building , 1520 Market Street , St. Louis, Missouri,
Telephone No. Main 1-8100, Extension 4142, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge, filed on May 28 and June 27, 1963, by
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, AFL-CIO, herein called the Union, the General Counsel of the Na-
tional Labor Relations Board by the Regional Director for Region 14 (St. Louis,
Missouri), issued a complaint dated October 3, an amended complaint dated Octo-
ber 22, and a second amended complaint dated November 15, 1963. On motion of
the General Counsel, the last complaint was further amended at the outset of the
hearing. The second amended complaint,.as amended, sets forth the specific respects
in which it is alleged that the Respondent violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, herein called the Act. The Colson Cor-
poration, herein called the Respondent, duly filed an answer to each of the aforesaid
complaints. In these answers the Respondent conceded certain facts with respect to
its business operations but denied the commission of any unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mullin
at Caruthersville, Missouri, on December 17 and 18, 1963. All parties appeared at
the hearing and were given full opportunity to examine and cross-examine witnesses,
to introduce relevant evidence, to argue orally. after presenting their evidence, and to
file briefs. The parties waived oral argument. A motion to dismiss, made by the
Respondent at the close of the hearing, is disposed of as appears hereinafter in this
Decision. Subsequent to the hearing, the General Counsel, the Respondent, and the
Charging Party filed briefs which have been fully considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , an Ohio corporation , has manufacturing facilities located in
Missouri , Arkansas, and Massachusetts . At its plant in Caruthersville , Missouri, the
only one involved in the present proceeding , the Respondent is engaged in the manu-
facture of materials handling and hospital equipment . In the course and conduct of
760-577-65-vol. 14&-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its operations it annually causes goods and materials valued in excess of $50,000 to
be sold and distributed directly from its plant in Caruthersville to States of the
United States other than the State of Missouri. Upon the foregoing facts, the Re-
spondent concedes, and the Trial Examiner finds, that The Colson Corporation is
engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO, is a labor organization within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
In the fall of 1962, Colson began operations in Caruthersville, Missouri, at a new
plant which had been constructed and then leased to the Employer by that munici-
pality. Late in December of that year and early in January 1963, the Union began
an intensive organizational campaign among the employees of Colson. On Janu-
ary 8, 1963, it requested recognition as their majority representative. This was de-
clined. On January 10 the Union filed a representation petition (The Colson Corpo-
ration, Case No. 14-RC-4494), seeking an election at the Caruthersville plant. On
January 28, it filed an unfair labor practice charge against the Company, alleging
that the Respondent had violated Section 8(a)(1) of the Act by certain conduct en-
gaged in by supervisory personnel and also by businessmen in the city of Caruthers-
ville who, according to the Union, were acting as agents for the Respondent. On
February 27, the Union requested the withdrawal of the foregoing charge and the
Regional Director granted this request without prejudice. Thereafter, on March 13,
the parties entered into a stipulation for certification upon consent election. On
March 22, the Regional Director conducted an election at the Caruthersville plant
which the Union lost by a vote of 32 to 20. On May 8, timely objections to the con-
duct of the election having been filed by the Union, the Regional Director issued a
report on objections in which he found that certain of the objections had merit and
recommended that the election be set aside and that the Board direct a new election.
On May 28, the Union filed a charge in which it alleged that since January 8, 1963,
and in violation of Section 8(a)(5) and (1) of the Act, the Employer had failed to
bargain with the Boilermakers. On June 27, the Union filed an amended charge in
which it included the foregoing allegation and also alleged that by discriminatory
conduct as to certain employees the Respondent had violated Section 8(a) (3). It is
upon the foregoing charges that the present proceeding- arose. On'November 20,
1963, and subsequent to the issuance of the second amended complaint in the instant
case, the Regional Director issued a supplemental report on objections in which he
recommended to the Board that, in view of the pendency of the unfair labor practice
proceeding, the representation petition in Case No. 14-RC-4494 be dismissed. In
an order dated December 9, 1963, the Board adopted this recommendation and dis-
missed the aforesaid petition without prejudice.
B. The evidence as to the alleged violations of Section 8(a) (1) during the period
from January through March 1963; findings and conclusions with respect thereto
The union organizational campaign among the Colson employees was directed by
Lloyd H. Russell and William H. Kincaid, International representative and business
manager, respectively, of the Boilermakers. On'January 3, 1963, Russell sent a tele-
gram to William A. Sheffield, manager of the Caruthersville plant, in which Russell
announced that the Union had begun its campaign among the Colson workers and
that employees Odell Thornton, Harlin Crayne, Herman Goodwin, Ralph Elkins, and
Herman Miller were acting as an organizational committee on behalf of the Union.
This telegram was received at the Respondent's plant on Friday morning, January 4.
It was undenied that shortly thereafter many of the businessmen in Caruthersville
visited the employees at their homes or otherwise contacted them in an effort to dis-
courage them from signing authorization cards. The General Counsel contends, and
the Respondent denies, that in this activity the businessmen were acting as agents of
Colson. The facts with respect to this issue are set forth below.
On or about January 4, a meeting of the businessmen in Caruthersville was held
to discuss the news of the Union's arrival and to map a course of action. It was
presided over by B. F. Rogers, mayor of the city of Caruthersville. Otis Hardy, a
pharmacist who attended the meeting, testified that "the mayor had a phone call that
morning that there was going to be, that the Union was going to try to come in to
THE COLSON CORPORATION ' 835
Colson the next day , and asked if the businessmen would try and contact some of the
employees that night to see if they would hold off v̀oting to bring the Union in for
some little time in order to let Colson get through their probationary training pe-
riod. ... ' Hardy further 'testified that approximately 25 men were present at the
meeting and that during the course of the discussion the suggestion was made that
the men pair off and contact the employees to persuade them that they should not
vote for the Union.
Horace Dunagan , Jr., president of the First State Bank - of Caruthersville , testified
that he had first heard of "labor trouble " at,Colson on Friday morning and that he
had telephoned Plant Manager Sheffield to ask him about the matter . According to
Dunagan , during the course of the conversation Sheffield told him that a telegram
from'the Union had just been delivered and'that, since this constituted official notice,
he (Sheffield ) could not thereafter talk any further about the plant labor problems.'
Dunagan testified that he attended the meeting of the businessmen described above
and estimated that he spoke to about 100 business 'people about the union issue dur-
ing the course of the day and thereafter.
The ' General Counsel called many of the employees as witnesses to testify as to
efforts of the businessmen in Caruthersville ` to persuade them that they should not
support the Boilermakers ' organizational ' campaign . Thus, Elbert Brees testified
that one evening during this period , Dee Barnes, owner of a grocery store, and an-
other businessman came to his home. According to Brees, Barnes told him that
"Colson called up and said a union was trying to get in and he thought he 'd go out
and talk to some of the guys to try to keep the union out . . Mr. Barnes said, we
got some troublemakers out there , we know how to deal with them , some of the
guys already went out and talked with them ... .. Woodrow W. Webber , another
employee, testified that about the same time , Barnes and L. F. Dudley, both of whom
were aldermen for the city of Caruthersville , visited his home and during their visit
told him "Colson is new here and we don't need no union here .. .- they says the
city promised them they wouldn 't have a union here for a year . . . they said the
city was ' up against it, the city built the building and Colson was paying them so
much a month for it and this town was in the red and they 'd hate to see Colson
move."
Harlin Crayne, one of the employees most active in the organizational campaign,
testified that on or about January 5 , Dunagan met him and Odell Thornton , another
employee, at the home of the latter . According to Crayne , immediately thereafter
Dunagan suggested that they proceed to his office at the State Bank of Caruthersville
where Dunagan and Mayor Rogers discussed the union question with the two em-
ployees. Crayne testified that Dunagan wanted to know if they had the union authori-
zation cards, "He wanted us to destroy the cards or get rid of them . He said
he didn 't want to see the names on them , all he wanted 'to do was see them destroyed."
According to Crayne , Dunagan asked him how he could contact the three other em-
ployees who were on the organizing committee (Goodwin, Elkins, and Miller), but
he was unable to answer this question because he did not know where those men
lived . When called as a witness , Dunagan testified that it was Odell Thornton who
had asked for the opportunity to meet with him and throughout the course of approxi-
mately 2 , hours that the discussion lasted most of the information about the Union
was volunteered by the two employees . Dunagan further testified that both Crayne
and Thornton expressed the view that it had been a mistake to become involved in
the organizational campaign , and that when they told him this he suggested that if
they really felt disillusioned they should throw away the union authorization cards
they had secured.
Raymond Hastings , another employee , testified that during this same week, "Red"
Corbin, a Caruthersville merchant, and William Chaffin , a local realtor, visited his
home and told him that they did not want to see a union ,at the Colson plant. Ac-
cording to Hastings , Chaffin told him that a Chris-Craft plant had left Caruthersville
because of a union and that "the merchants and business 'places here in town had
too much tied up to see a union come in here and run Colson out."
Mike Warren , a Colson employee, testified that on or about January 4, Gordon
Wright, a furniture dealer, and Jackie Jones, a paint store owner, visited his home
and discussed the union campaign with him. Warren testified that the -businessmen
told him they could not understand why the employees ' would want to vote in a
union , "it might cause the company to move away ." According to Warren, during
i In his testimony , Dunagan referred to the date as "Friday morning, January 5 , 1963."
Actually„ Friday was January 4 Other testimony in the record established that the
telegram in question was delivered on the latter date. For this reason the Trial Exam-
iner concludes that Dunagan ' s conversation with Sheffield was on Friday , January 4.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this same conversation his visitors told him that they had the names of the union
organizers. Warren further testified that about 2 weeks later Wright came back to
his home and sought to secure his signature on a card which stated that he no longer
wanted the Union to represent him. According to Warren, however, he closed the
conversation with his visitor by telling him that he did not want to discuss the matter
any further, that he was "sick and tired of the whole mess."
Gail B. Collins, another of the Respondent's employees, testified that, during the
first week in January, Mr. Adair, a grocery store owner and head of the chamber of
commerce, engaged him in a conversation on the unionization of the Colson plant.
According to Collins, Adair told him that "in our town, we don't want a union .
they had the names of the people that was trying to start this Union [and]
that the plant might move out." Robert R. Dean, another employee, testified that
during this same period, William Inman, operator of an auto parts establishment, and
Frank Slentz, an automobile dealer, came to see him at the home of his father.
According to Dean, Slentz questioned him as to what he thought of the Union, and
when he gave a noncommital response Slentz told him, "You know that the City of
Caruthersville has a lot of money tied up in the plant and if the-Union camg in
Colson would more than likely pull out." Dean further testified that Slentz asked
that he not sign a card or vote for the Union, declared that "We could threaten some
of the men and get their jobs but . . . we don't want to do that," and concluded the
conversation by stating that he knew the men who were trying to organize the plant.
Dunagan's efforts to contact the employees continued for a considerable time. As
noted earlier, on March 22, 1963, the Regional Director held a representation elec-
tion at the Colson plant. Nebert 0. Davidson, a welder in the Respondent's employ,
testified that Dunagan came to his home on two different occasions during the period
immediately before the election to inquire as to what Davidson thought of the Union
and to express the hope that the Union could be kept out for a while. Paul L.
Hundhausen testified that about 4 days before the election Dunagan questioned him
about the Union's prospects. Nike Warren testified that about a week before the
election Dunagan told him that the "people in town went to a lot of trouble . . .
to get this plant in here . . ." and that the plant should have a year of freedom from
the Union. Warren further testified that Dunagan also told him at this time, "If the
Union don't go in . . . I can't guarantee you, but I could almost promise a 20 cent
raise." Hundhausen was also asked whether Dunagan had mentioned the prospect of
a wage increase to him, but several attempts by the General Counsel to secure such
a statement from him were unavailing. While on the witness stand, Dunagan testi-
fied with the utmost candor and forthrightness about his opposition to the Union
and frankly conceded that he expressed his views to many of the employees during
the period in question. With respect to the above-quoted testimony of Warren, how-
ever, Dunagan vigorously denied having made a statement either to Warren or to any
other Colson employee about the prospects of a wage raise if the Union lost the
election. Although Warren was, in general, a credible witness, in this instance it is
the conclusion of the Trial Examiner that Dunagan's denial must be credited.
Apart from Dunagan, no other Caruthersville businessman was called as a-wit-
ness. The testimony of the employees, related above, was, therefore, undenied. With
the exception already noted as to Warren's testimony, all of these were credible wit-
nesses. Since their testimony was neither contradicted nor denied, the Trial Exam-
iner credits, as true, their respective accounts of the various attempts by the Caruthers-
ville business leaders to dissuade them from signing authorization cards or supporting
the Union in its campaign'to organize the Colson plant.
There was also testimony in support of an allegation that, during the period im-
mediately before and after the election, certain company supervisors engaged in
interference, restraint, and coercion. Gene Harwell, an employee in the assembly
room, testified that before the election James Dinnell, foreman of that department,
asked that he talk with the employees in the welding department to "find out how
they felt about the Union and which way they was going to vote." According to
Harwell, sometime before he, had made known to Dinnell that he himself was op-
posed to the Union. Harwell testified that about a week before the election, Earl
Potts, foreman of the welders, engaged him in a similar conversation. According to
Harwell, Potts asked what Harwell thought of the Union and what he expected
would be the outcome of the election. Harwell further testified that Potts then
questioned him about his fellow employees and asked that Harwell talk to them to
ascertain how they felt. Robert Dean, an employee of the grinding department,
testified that sometime after the election, and when on a visit to the stockroom, he
was stopped by Vernon Gantz, foreman of that department, who told him, "I under-
stand that you have been talking union to some of the employees in the plant .. .
THE COLSON CORPORATION 837
Sheffield [William Sheffield, plant manager] knows about it and the next time it
happens he is going to fire you." None of the foregoing named supervisors was
called as a witness. The testimony of Harwell and Dean- was credible and, being
neither contradicted nor denied, it is credited by the Trial Examiner. It was a
violation of Section 8(a) (1) of the Act for the Respondent, through its Supervisors
Dinnell and Potts, to question employee Harwell as to the union sympathies of his
fellow employees and to suggest that he supply such information about them. It was
equally violative of this same section of the Act for the Respondent, through Fore-
man Gantz, to express the threat that employee Dean would be discharged by the
plant manager if he kept on "talking Union." The Trial Examiner so finds.
The General Counsel alleges that Colson also violated Section 8 (a) (1) of the Act
through the conduct of the Caruthersville businessmen, set out above, in that the
Respondent ( 1) failed to discourage the said businessmen from engaging in an anti-
union campaign in which the employees were threatened with reprisals if they se-
lected the Union as their collective-bargaining representative, and (2) failed to take
appropriate action to dispel the effects of the said threats. This is denied by the Re-
spondent. According to the latter, it did everything possible to disassociate itself
from the action and conduct of the businessmen in question so that they cannot now
be held to have acted as the agents of the Respondent. To the facts in connection
with this issue we will now turn.
The Colson plant is located in a new building that was completed during the sum-
mer of 1962 and is owned by the city of Caruthersville. At some time in the recent
past, a group of community leaders, with a view to bringing new industry to the
city, had formed the Caruthersville Industrial Development Corporation. President
of the latter was Gordon Wright and vice president was Horace Dunagan, Jr. In
addition to Wright and Dunagan, other shareholders were Dee Barnes, L. F. Dudley,
William Chaffin, Red Corbin, Mayor B. F. Rogers, Jiggs Adair, Otis Hardy, Frank
Slentz, and Felix Kyle. The initial negotiations of this group with Colson resulted
in the establishment of yet another organization that was to be known as the R & R
Corporation. The latter was formed in 1962 and had Wright as its president,
Dunagan as its vice president, and James E. Reeves, attorney for Colson in the pres-
ent case, as its secretary. R & R was established with a twofold objective: (1) to
keep the name of Colson out of the picture with regard to negotiations with the city
of Caruthersville, and (2) to free Colson from any premature identification with the
new plant so that it could proceed with the closing of another factory located in Ohio.
Construction of the plant in Caruthersville began in June 1962. A` few employees
started to work in July, but the plant was not fully open for business until Septem-
ber 17, 1962, when it went into production. Throughout the construction phase
and the early production period, George A. Jones, Colson's vice president in charge
of manufacturing, was present at the site, along with several other key personnel for
the Respondent. None of the officers or directors of R & R had any management
functions and all served without pay. However, payroll checks and -other adminis-
trative expenses for the plant were paid by R & R until mid-September. Dunagan
testified that he signed these checks for R & R and that he visited the plant not only
every day during this period, but that he had done so every day for the last 2 years.
Colson, of course, reimbursed R & R for all its expenditures and on or about Novem-
ber 30, 1962, the officers of R & R, named above, transferred their shares to Colson
and resigned. Thereafter, Colson personnel were named to 'these same offices and
the Respondent thereupon began the liquidation of the R & R Corporation, a matter
that was still under way at the time of the hearing.
Jones, mentioned earlier, is in charge of all operations at the three plants which
Colson presently operates. In addition, he is responsible for the Company's labor re-
lations policy. Jones, who maintains his headquarters at the Respondent's plant in
Jonesboro, Arkansas, testified that he first heard of the Boilermaker's campaign about
January 5, 1963, when he received a telephone call from Sheffield. According to
Jones, the plant manager told him that some of the businessmen in Caruthersville
were concerned about the appearance of a union and planned to do something about
it. Jones testified that he cautioned Sheffield that he was to have nothing to do with
such a move on the part of any of the business people in the city and that in the
meantime he was to determine to what extent the Boilermakers had secured any ad-
herents among the plant personnel. He further testified that on or about January 7
the plant manager telephoned to report that whereas the' Union seemed to have strong
support in the machine shop, the men in the assembly departments were antiunion
and that he thought a majority in the plant were opposed to the Boilermakers. Jones
also testified that by January 8, on the basis of Sheffield's report, he concluded that
the Union did not have a majority in the Caruthersville plant.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About mid-January , according to Jones, he met Dunagan in,his office at the State
Bank of Caruthersville and told him that whereas the businessmen were. entitled to
their opinion, the. Company "could not endorse [their antiunion campaign!, could
not associate, themselves with it in any way, and that, in fact, we had come to- the
conclusion that we • were'going to post a notice disassociating ourselves with . th"em."
In fact, such a notice was posted at the plant in January 28, 1963. It read as'follows:
We have heard that some local businessmen have spoken with some of our
employees concerningthe organization of this plant by a union.
The Company wishes it known that this was done on the businessmen's own
initiative, and that they were not authorized by_the Company to speak'on behalf
of The Colson Corporation. I
W. A. Sheffield -
Plant Manager
It is the contention of the General Counsel and the Charging Party that the fore-
going announcement was too belated and insufficient to dispel the effects of the anti-
union campaign which the local businessmen had conducted up to that point. On
the other hand, the Respondent contends that the notice set out above made clear to
the employees that the Company had nothing to do with the activities of the business-
men and that, in any event, they were not acting as agents for Colson.
Eearlier in this decision the facts were set out with respect to the R & R Corpora-
tion. From these it is apparent that in Caruthersville for many months during
1962, R & R was the alter ego of Colson. Through a complex arrangement, R & R,
on behalf of Colson, negotiated with the city of Caruthersville for a lease, staffed
the plant with new employees, and, went into production. During this period, the
new personnel received a booklet of work rules put out by R & R and, on checks
signed by Horace Dunagan, they received their pay. To all external appearances,
and no.doubt to many of these employees, they were employees of R & R, of which
corporation, Dunagan was the vice president and Gordon Wright the president.. In
fact, however, Jones and a handful of his associates were directing operations at the
plant, everyone was paid by Colson, and, as the parties stipulated, "at all times at
the plant were considered Colson personnel."
Since Colson, for its own benefit, used R & R in its stead at the Caruthersville plant,
and made that company - its agent as to the employment relationship of the employees,
it is estopped from denying liability for the acts of the latter corporation in the period
prior to November 30,• 1962. "Restatement of the Law of Agency, Second," § 94 e;
Berryhill v. Ellett, 64 F. 2d 253, 256 (C.A. 10); Hall v. Union Indemnity Co.; 61 F.
2d 85, 91 (C.A. 8), cert. denied 287 U.S. 663.
While it is true that on November 30, 1963, the officers and directors of R & R
resigned and transferred their shares of stock to officers of Colson, there is no evi-
dence that any public announcement was ever made to this effect. There is no evi-
dence whatsoever that the employees were ever notified that the joint R & R-Colson
relationship had come to an end and that Dunagan, Wright, and the other business-
men who were officers and shareholders in the former corporation no longer acted
for and on behalf of Colson. It is a well-established rule of agency that the revoca-
tion by the principal of an agent's authority does not become effective as to third
persons, in this instance, the employees, until they receive notice to that effect. "Re-
statement of the Law of Agency, Second, § 103; Southern Life Ins. Co. v. McCain,
96 U.S. 84, 86. Here, no such notice was ever given. Even the notice which Sheffield
posted on the plant bulletin board on January 28 never reached this issue. It did
not mention the termination of R & R's agency with Colson, nor did it repudiate the
activities of that agent. The notice referred in only general terms to those whom it
described as "some local businessmen " and even as to them it did not repudiate their
statements . For these reasons it is the conclusion of the Trial Examiner that Colson
must be held responsible for the antiunion campaign conducted by Dunagan, Wright,
and their. associates during the early weeks of January 1963. Southland Manufac-
turing Company, 94 NLRB 813, 814-815, enfd. 201 F. 2d 244 (C.A. 4); Reliance
Manufacturing Company v. N.L.R.B., ' 125 F. 2d 311, 317 (C.A. 7); Mid-South
Manufacturing Company, Inc., 120 NLRB 230, 245-246; L & H Shirt Company,
Inc., 84 NLRB 248, 252.
In view of the foregoing facts, the Trial Examiner concludes and finds that the Re-
spondent engaged in interference, restraint, and coercion, thereby violating Section
8 (a) (1) of the Act by: (1) the efforts of Horace Dunagan to induce employees
Crayne and Thornton to destroy the union authorization cards which they had se-
cured; (2) the discussion of Gordon Wright and Jackie Jones with employee Warren
in which they told Warren that if the employees voted in a union "it might cause the
THE COLSON CORPORATION - 839
company to move away"; (3) the efforts of Wright about 2 weeks later in which he
solicited Warren to sign a card signifying his desire to withdraw from the Union;
(4) the statement of Adair, head of the chamber of commerce, who told employee
Collins that the town did not want a union, that"they had,the names of the people
that was trying to start this Union . [and] that,the plant might move out"; (5) the
statements of Slentz to employee Dean, "You know-that the City of Caruthersville
has a lot of money tied up in the plant and if the Union, came in Colson would more
than likely pull out," and his further, remark to the same employee that "We could
threaten some of the men and get their jobs but . . we don't want to do that";
(6) the statement of Dee Barnes to employee Brees that he was talking to him be-
cause "Colson called up and said a union was trying to get in" and his further state-
ment, "We got some troublemakers out there, we know how to deal with them, some
of the guys already went out and talked with them .... ; (7) the antiunion state-
ments of Barnes and Dudley, both of whom were aldermen, to employee Webber, in
which they said, "We don't need no union here . the city promised [Colson] they
wouldn't have a union here for a year . . . the city was up against it, the city built
the building and Colson was paying them so much a month for it and this town was
in the red and they'd hate to see Colson move"; and (8) the statements of Chaffin
and Corbin to employee Hastings during their visit to his home.in which they ex-
pressed their opposition to the Union on the grounds that a Chris-Craft plant had
moved because of a union and that "the merchants and business places here in town
had too much tied up to see a union come in here and run Colson out." Finally, in
this context of interference, restraint, and coercion on the part of businessmen in
Caruthersville, it was also a violation of Section 8(a) (1), attributable to the Re-
spondent for Dunagan, on the eve of the election, to question employees Davidson
and Hundhausen as to what they thought of the Union.
C. The alleged violation of Section 8(a)(5) of the Act; findings and
conclusions with respect thereto
1. The appropriate unit
The General Counsel alleged, the Respondent conceded, and the Trial Examiner
finds that all production and maintenance employees at the Employer's Caruthersville,
Missouri , plant , excluding office clerical employees , draftsmen , guards, professional
employees, and supervisors as defined in the Act constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act. The
parties further stipulated that on January 8, 1963, when the Union first sought recog-
nition , there were 57 named employees in the foregoing unit?
The General Counsel offered in evidence the authorization cards of 30 individuals
who were employed within the above unit on January 8, 1963. All of these cards
were dated from December 12, 1962, to January 4, 1963. The authorizations were
in the conventional form .3 The Respondent does not dispute the authenticity of the
signatures on 19 of these cards which were identified by the individual employees who
appeared as witnesses . These were Gail Collins, Robert R. Dean , Harlin Crayne,
Elbert Brees, Paul L . Hundhausen , Joe R . Downing, Raymond Hastings , William P.
Jordan, Dan Faulkner, Parker G. Maners, Warren Junior Duda, Dearl Brees, James
T. Moody, Lindell Pruitt, Woodrow Wilson Webber, Lynn H. Medlin, Freddie J.
Prater, Walter Lee Bolin, Jr., and Roger Burdette. The remaining cards were iden-
2 This total does not include W. Jones and V. Ledbetter The parties stipulated that
although the names of these two individuals appeared on an original list of employees in
the unit, in fact, their duties were those of guards.
The cards read as follows:
AUTHORIZATION FOR REPRESENTATION
(This Is Not an Application foi Membership)
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS, FORGERS AND HELPERS
AFL-CIO
FILL IN ALL BLANKS DATE
I, the undersigned employee of
(Name of Company)
hereby select the above named Union as my collective bargaining agent
Name of Employee
Home Address (please print) Street City
State Phone
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tified by the testimony of witnesses other than the signatory. Thus, Harlin Crayne
testified that he witnessed the execution of the cards bearing the signatures of em-
ployees Charles Edelman, Ralph W. Elkins, Herman D. Goodwin , Virgil Lincoln,
Jackie McNabb, Sherman Miller, and Odell Thornton. Gail Collins testified that he
witnessed employee Frank Anderson sign a card , Mike Warren testified that he saw
employee Charles F. Taylor sign an authorization , and Webber testified that he saw
Leon Ferrell sign a card . The testimony of the foregoing witnesses on the authentica-
tion of these 10 last-named authorizations was credible . The Respondent did not
establish any coercion or unlawful inducement concerning the signing of these cards
and it did not bring forth any facts that would cast doubt on the voluntary nature of
the designations . Irving Taltel, Ruth Taitel and Jerome Taitel, d/b/a I. Taitel and
Son, a partnership, 119 NLRB 910, 912, enfd. 261 F. 2d 1 (C.A. 7), cert. denied
359 U.S. 944.4 The Board has held that it "must give effect to the presumption of
validity flowing from the authorizations which appear on the face of ,the union cards."
Economy Food Center, Inc., 142 NLRB 901. See: N.L.R.B. v. Sunshine Mining Co.,
110 F. 2d 780, 790 (C.A. 9), cert. denied 312 U.S. 678; Combined Metal Mfg. Corp.,
123 NLRB 895, 896-897; Philamon Laboratories , Inc., 131 NLRB 80, footnote 1,
enfd. 298 F. 2d 176, 179-180 (C.A. 2), cert. denied 370 U.S. 919. Accordingly, it
is the conclusion of the Trial Examiner that these last 10 cards must be counted,
along with the other 19 mentioned earlier , in determining the Union's status .5 Thus,
on January 8, 1963, when it requested recognition, the Union had 29 authorizations
from the 57 employees in the appropriate unit . This constituted a bare majority .6
2. The alleged refusal to bargain
The Respondent relies on several grounds in answer to the General Counsel's allega-
tion that it violated Sectioi; 8 ( a)(5) of the Act . Thus , the Company asserts that it
had a good-faith doubt as to the Union's majority at the time of the original demand
for recognition and that the outcome of the subsequent election , which the Union
lost, confirmed this assumption.
Earlier herein, it has been found that immediately after receiving the Union's de-
mand for recognition, Vice President Jones requested Plant Manager Sheffield to con-
4 The Respondent offered two signatures of Leon Ferrell from documents In its possession
to disprove the authenticity of the signature of this employee which appears on General
Counsel ' s Exhibit No. 6-14. Witness Webber credibly testified that Leon Ferrell , his step-
son, signed the card in question in Webber ' s home on the date which the card bore. Webber
further testified , also credibly , that he was well acquainted with the signature of his step-
son. ^ Apart from this evidence , an examination of the documents offered in evidence by
the Respondent tends to corroborate , rather than destroy, the apparent authenticity of
the signature which appears on Ferrell's card
5 Not counted in this grouping is General Counsel's Exhibit No . 6-28, which bore the
signature of George Stimel Stimel never appeared as witness . Late in the hearing,
Harlin Crayne was recalled for the sole purpose of authenticating this card . In this con-
nection Crayne testified that he had given an - authorization to Stimel and that sometime
later Stimel returned a signed card to him - Crayne conceded that he had never seen
Stimel sign the card Apart from the latter fact, however, the all too evident manner In
which Crayne ' s recollection was refreshed with respect to this particular incident cast
grave doubt upon the reliability of his testimony as to Stimel's card. In contrast with
Crayne's testimony given earlier in the hearing as to the authorizations which he secured
from Edelman , Elkins, Goodwin , Lincoln, McNabb , Miller, and Thornton , his testimony as
to Stimel ' s card was not persuasive. Consequently , the card purportedly bearing'Stimel's
signature will not be counted.
6 The Respondent introduced cards signed by Thornton, Downing, Faulkner, and Moody,
which read as follows:
I am an employee of the Colson Corporation at Caruthersville , Missouri, and I do
not want any union to act as bargaining agent for me
Moody's card was undated The other three bore dates ranging from January 31 to
March 17, 1963 . The record contains little evidence as to the circumstances or the man-
ner In which cards were secured . They were produced at the hearing by the Respondent.
There Is no evidence that they were ever sent to the Charging Party, or that the Union
was ever informed by these employees that they desired to revoke their authorization of
it as their collective-bargaining agent. In any event , these purported repudiations have
no relevance as to the question of whether the four above -named employees signed valid
authorizations early in January 1963 -
THE COLSON CORPORATION 841
duct a canvass of the employees to determine the extent of the Union 's support. This,
of course, was after the union representatives had offered to have an impartial third
party conduct a card check of the authorizations then in the Union's possession.
Further, during this same period , the businessmen of Caruthersville were engaged in
a vigorous campaign to defeat the Union 's organization efforts. The Company's re-
sponsibility for this campaign has been set forth above. Consequently , and in the
light of these factors , it is the conclusion of the ' Trial Examiner that on January 8,
1963, when the Union requested recognition as the bargaining agent for an appro-
priate unit, the Respondent did not then have a good -faith doubt as to the Boiler-
makers' majority . Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 723, 741-742
(C.A.D.C.), cert . denied 341 U.S. 914 ; N.L.R.B. v. Wheeling Pipe Line, Inc., 229
F. 2d 391 , 393 (C.A. 8).
Another ground urged by the Respondent in answer to the refusal -to-bargain charge
is more substantial . This is the contention, raised in its brief , that the Union waived
the refusal-to-bargain charge by proceeding with an election . Aiello Dairy Farms,
110 NLRB 1365 , 1366-1370. After the Company refused to recognize and bargain
with the Union on January 8, the Union , on January 10, filed a representation peti-
tion. Then, on January 28, it filed unfair labor practice charges against the Com-
pany . About a month later , the Union withdrew these charges and then , with the
Respondent and the Regional Director , entered into a stipulation for certification
upon consent election . The Union , therefore , proceeded to an election with full
knowledge of the alleged violations of Section 8(a)(1) which had occurred in the
preelection period . Since it chose to establish its majority status by the election pro-
cedures provided in the Act , the Board's decision in Aiello requires that a finding
that an employer refused to bargain in violation of Section 8(a)(5) must be predi-
cated on events which occurred after the election . Here, the Union did make a new
demand for recognition and bargaining on May 10 , 1963 , which demand the Com-
pany refused . However, the General Counsel and the Charging Party made no
effort to establish that as of that date the Union had a majority in an appropriate unit.
Earlier herein it was found that on January 8, 1963 , the Union had secured authori-
zations from 29 employees in a unit of 57. There was evidence that shortly before
the election , Charles Taylor , one of the card signers who made up the total of 29,
left the employ of the Company . Since, on January 8, the Union had a majority of
only one, with Taylor 's departure in March the Union could no longer rely on a pre-
sumption of a continuing majority. Consequently , on the basis of this record, it can-
not now be held that the Union perfected its claim to be the majority representative
by its postelection demand for recognition . Accordingly , since the Trial Examiner
must adhere to the Board 's position as set forth in Aiello, it is his conclusion that the
allegations in the complaint as to Section 8(a)(5) must be dismissed?
D. The Respondent's alleged violation of Section ' 8(a) (I) in terminating four
employees; findings and conclusions with respect thereto
On June 24, 1963, Nebert O. Davidson, Gene Harwell, Leonard Pruitt, and Henry
White, four welders in the Respondent's welding shop, walked off the job to protest
the Respondent's promotion of one Jackie Norris as a leadman. On June 26, when
reporting back for work, they were told that they would be reemployed only upon
presentation of doctors' certificates to establish that they had been off due to illness.
When the four employees declined to adopt this subterfuge they were not allowed to
return to work and shortly thereafter were terminated. The General Counsel alleges
that they were dismissed for having engaged in protected concerted activities. The
Respondent concedes that these employees were terminated but denies that their
activities were protected and that, in any event, they were replaced before their re-
turn to work.
In May 1963, Leonard Pruitt,8 an experienced welder, became an acting leadman
in the weld shop. Sometime in June, Jackie Norris, a new and relatively inexperi-
enced welder was hired by the Company. About June 21, Foreman Earl Potts posted
a notice to the effect that thereafter Norris would be the leadman in the shop. This
'On March 27 and December 16, 1963, the Respondent granted plantwide increases to
its employees The complaint alleged that since these raises were granted unilaterally
they constituted additional violations of Section 8(a) (5) by the Respondent However, in
view of the disposition which Aiello compels as to the basic refusal-to-bargain charge, the
Trial Examiner concludes that the Section 8(a) (5) allegations posited on the unilateral
wage raises must also be dismissed
8 In the record this individual is also referred to as Jackie Pruitt
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meant a raise of 10 cents an hour for Norris and, of course , gave him some authority
over the other welders . The welders discussed the matter among themselves the day
of the announcement and two of their group, Harwell and Davidson , protested to
Potts on the ground that the promotion should have gone to Pruitt rather than to
Norris, a new man. According to Davidson , "I had to repair two of his [ Norris']
welds the day they gave him the job [of leadman]." Earlier, Davidson had pro-
tested to Plant Superintendent Charles L. Howell , that Norris was not qualified.
According to Davidson, Howell dismissed his complaint with the statement "... if
we've made a mistake maybe we'll see it." 9 Henry White testified that after the
notice about Norris appeared on the bulletin board , he, Harwell , Davidson , and Pruitt
discussed the matter and decided that if the Company would not let Pruitt be the
leadman they would quit . It was undenied that on the morning of June 24 , Davidson
told Foreman Potts that if the Company did not put Norris back in the same pay rate
as the rest of the welders , or give the other welders the 10-cent raise that Norris was
getting, they would walk out . Harwell testified that later that morning he asked
Potts whether anything had been done about their protest and the foreman replied
in the negative . According to Davidson , "We four told him [Potts] we 'd give him
until noon to get some action or we were going to walk out . we told him that
we didn't want to lose our job, that we'd come back before the three days are
up 10 . . . we want to protest , maybe the head office will hear about it. . ,. ."
About noon on June 24 the four employees left the plant .. The following day,
Foreman Dinnell visited Harwell . at his home to tell him that if he wanted to return
to work the Company would insist that he have a doctor's certificate to establish that
illness was the cause of his absence . Harwell manifested no desire to adopt this
strategy; told Dinnell that he had not been sick, that Potts knew why he had been off,
and that he would see Potts the next morning."
The four employees reported for work on June 26 at 7, a.m., the beginning of the
shift . Potts immediately informed them he would take them back only if they could
prove that they had been off because of illness and had doctors ' certificates to prove
it. When they told him that they had been out only because of their protest, Potts
turned them away with the statement , "Well, the management says you can't go to
work without a doctor's statement ." 12 Immediately thereafter these employees were
terminated . They were never reemployed . A company personnel action sheet on
Pruitt was received in evidence . It was dated June 27 and contained , in explanation
of Pruitt's termination , the following statement:
This man walked off the job at 11:30 a.m. on June 24th , and did not report
back to work after the lunch period , nor did he report any reason for his absence.
He was one of four who took this action because , in his mind , he had a griev-
ance against the company . What this grievance was is unknown as no super-
visor was made aware of it..
He was absent for the full shift on June 25th, still without notification of any
reason.
He reported for work at 7:00 a.m . on June 26th, and was informed that his
services were no longer required.
Under no circumstances would this man be rehired by the Colson Corporation.
It is the contention of the Respondent that since the employees were engaged in a
protest over the promotion of Norris to leadman their concerted activity was un-
protected . It is true that there is a line of cases which holds "that promotions are a
prerogative of management and that employee protests about such decisions ' are not
protected under Section 7 of the Act. Cleaver-Brooks Mfg. Corporation v. N.L.R.B.,
264 F. 2d 637 (C.A. 7), cert. denied 361 U.S. 817; N.L.R .B. v. Reynolds Inter-
national Pen Company, 162 F. 2d 680 (C.A. 7); Joanna Cotton Mills Co. v.
Howell testified that prior to the walkout he had never talked with any of the welders.
However, he never specifically denied the conversation which Davidson attributed to him
Davidson was a credible witness The Trial Examiner is convinced and finds that the
employee had the conversation in question substantially as he testified '
10 The Respondent had a plant rule that an unexcused absence of 3 days would subject
an employee to the penalty of discharge
n The foregoing findings are based on the credited, undenied testimony of Harwell.
Dinnell did not testify.
12 The quotation is from the credited, undenled testimony of Davidson Potts did not
testify and no explanation was offered for his failure to take the stand.
THE COLSON CORPORATION 843
N.L.R B., 176 F. 2d 749 (C.A. 4).13 There is, however, another line of cases which
holds to the contrary. Thus, in Carter Carburetor Corporation v. N.L.R.B., 140 F. 2d
714 (C.A. 8), the court stated, "Section 7 gives employees the right 'to engage in
concerted activities, or for the purpose of collective bargaining or other mutual aid
or protection.' This `mutual aid' and `concerted activities' include, we think, the right
to join other workers in quitting work in protest over the treatment of a coemployee,
or supporting him in any other grievance connected with his work or his employer's
conduct." (Ibid., at 718.) See also: Modern Motors, Incorporated v. N.L.R.B.,
198 F. 2d 925, 926 (C.A. 8); N.L.R.B. v. Phoenix Mutual Life Insurance Company,
167 F. 2d 983, 987-988 (C.A. 7), cert. denied 335 U.S. 845; N.L.R.B. v. Guernsey-
Muskingum Electric Cooperative, Inc., 285 F. 2d 8, 12-13 (C.A. 6); N.L.R.B. v.
Washington Aluminum Company, Inc., 370 U.S. 9, 13-18. The Board has adhered
to the position set forth in the latter group of decisions. In Dobbs Houses, Inc.,
135 NLRB 885,14 the Board held:
. . . under well-established precedent, concerted action by employees to protest
- an employer's selection or termination of a supervisory employee is not auto-
matically removed from ,the protection of the Act. Each case must turn on its
facts. Where, as here, such facts establish that the identity and capability of the
supervisor involved has a direct impact on the employees' own job interests and
on their performance of work they are hired to,do, they are legitimately con-
cerned with his identity. -
The welders involved'in this case had a direct and immediate interest in the type of
leadman appointed to supervise their work. They were concerned about Norris'
capability to perform this job and voiced their concern not only to Potts, their fore-
man, but also to Howell, the plant superintendent. When their complaints went un-
heeded they took the-extreme step of leaving the plant as a group to emphasize the
seriousness of their protest. On the facts here present, and in the light of the Dobbs
decision, which must control this case,15 it is the conclusion of the Trial Examiner
that these employees engaged in protected concerted activity on June 24 and 25. As
such they were -economic strikers, entitled to reemployment if, at the time they
abandoned their strike, they had not been replaced. -
The Respondent, however, contends that even if their conduct is held to have been
a protected concerted activity, the four welders were, in fact, replaced prior to their
return to the plant on June 26. Thus, Plant Superintendent Howell testified that on
June 25, Mike Warren, a welder who had been off on sick leave for 30 to 60 days,
reported back for duty. White, one of the strikers, was a probationary employee
who had been on the job only a few weeks at the time of the walkout. According to
Howell, when Warren returned to the welding department on that date the Company
would have had to lay off someone and that would have been White since the latter
was not only a probationary employee but also had been a poor welder. Howell's
testimony as to Warren's return to duty was not denied. On the other hand, his fur-
ther testimony that this would have compelled the layoff of White was unconvincing.
The total number of welders in the welding department does not appear in the record.
On the other hand, it does appear that there were several in addition to the four
immediately involved in the walkout and there was no evidence'that White'was origi-
nally hired as a temporary replacement while Warren was on sick leave. Most sig-
nificantly, however, on the morning of June 26, when White reported back for work,
Potts told him, as well as the other three strikers, that he could not be reemployed
without a doctor's certificate to prove that he had been out because of illness. This
meant, of course, that at that point a job was still open for White if only he would
13 In its brief the Respondent also cites N.L.R.B. v. Montgomery Ward & Co., 157 P 2d
486 (C . A. 8), and Honolulu Rapid Transit Company, Limited, 110 NLRB 1806, on this
issue Neither of these cases, however, is apposite here Both involved the legitimacy
of a partial strike or slowdown. In this case the evidence is clear that the four em-
ployees, after their protest to Foreman Potts, left the plant and did not return until
June 26 when they sought full reemployment. Thus, the situation present in this case is
not that of the partial strike described by the court in Montgomery Ward when it stated
that employees "could not continue to work and remain at their positions, accept the
wages paid to them, and at the same time select what part of their allotted task they
cared to perform of their own volition." (Ibid. at 496 )
14 Enforcement was denied in this case, Dobbs Houses, Inc v. N L R B., 325 F. 2d 531
(CA. 5)
15 Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Cein-
pany of America), 119 NLRB 768, 772-773, reversed on other grounds 361 U S. 477.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concede that he had been on sick leave and not on strike. When White and his
associates refused to adopt this legerdemain they were denied reemployment. Later,
on Pruitt's personnel record, the Company noted, after reciting that he was one of
four who walked out because of "a grievance against the company," that "Under no
circumstances would this man be rehired by the Colson Corporation." In view of
these facts, it is the conclusion of the Trial Examiner that on June 26 a job opening
was still available for White and, further, that he would have been reemployed if
only he would declare that his absence was not due to participation in activity pro-
tected under Section 7 of the Act. The Respondent was not free to establish such a
condition precedent to his reemployment. Its action in doing so was discriminatory
and a violation of Section 8 (a)( I) as alleged by the General Counsel.16
The evidence as to the alleged replacement of the other welders is equally un-
convincing. Thus, Howell testified that immediately after the walkout he contacted
a vocational training school some distance from Caruthersville and requested that it
send three to four welders. According to Howell, in response to this request, two
applicants reported to the plant on the morning of June 26 and after they had taken
a welding test he hired them. He conceded that, notwithstanding his offer of em-
ployment, neither of these welders ever actually went to work for the Respondent.
This latter fact is not material to the issue here, for Howell also testified that it was
not until about 9 a.m. on June 26 that he allegedly hired these two vocational school
trainees. From other evidence in the record it appears that the four strikers came to
the plant at 7 o'clock that morning and were immediately told by Foreman Potts that
since they did not have doctors' certificates they would not be reemployed. From
Howell's own testimony, therefore, it is obvious that the alleged replacements were
not offered employment until 2 hours later. Howell also testified that on June 25 he
transferred Alfred Slavin, an employee in the grinding and polishing department, to
the welding room. Slavin, however, was not a permanent replacement for any of the
strikers. Howell described the transfer of this employee to the welding job as "more
or less temporary at that time." From the foregoing evidence it is clear, and the
Trial Examiner finds, that as to all of the strikers the Respondent had not secured
replacements of a permanent character at the time they reported back to the plant on
the morning of June 26. Consequently, the Respondent was not free either to refuse
to reemploy them or to determine never to rehire them as it did in the case of Pruitt
by noting on his personnel record that "Under no circumstances would this man be
rehired by the Colson Corporation." Upon the foregoing facts it is the conclusion of
the Trial Examiner that the Company refused to reemploy White, Pruitt, Davidson,
and Harwell because they had engaged in concerted activity that was protected under
Section 7 of the Act. The Respondent's action in so doing was discriminatory and a
violation of Section 8(a) (1). The Trial Examiner so finds.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and, the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that the Respondent cease and desist therefrom and take
certain affirmative action of the type below, which is necessary to remedy and to re-
move the effects of the unfair labor practices and to effectuate the policies of the
Act. For, the reasons set forth in Consolidated- Industries, Inc., 108 NLRB 60, 61,
and cases there cited, a broad cease-and-desist order will be recommended.
Having found that the Respondent unlawfully refused to reemploy Henry White,
Nebert Davidson, Gene Harwell, and Leonard Pruitt on June 26, 1963, the Trial
Examiner will recommend that the Respondent offer them immediate and full re-
instatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole for any loss
of earnings they may have suffered by reason of the discrimination against them, by
payment to them of a sum of money equal to that which they normally would have
earned from the aforesaid date of discharge to the date of the Respondent's offer of
19 White's status as a probationary employee, it should be noted, did not lessen the scope
of the Act's protection National Seal, Division of Federal-Mogul-Bower Bearings, Inc,
141 NLRB 661, 663-664.
LOCAL 2 5, INT'L BROTHERHOOD OF TEAMSTERS , ETC. 845
reinstatement.17 Backpay will be computed in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, with interest as directed by the Board
in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All production and maintenance employees at the Respondent's Caruthersville,
Missouri, plant, excluding office clerical employees, draftsmen, guards, professional
employees, and supervisors as defined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within Section 9(b) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not refused to bargain with the Union within the meaning
of Section 8(a)(5) of the Act, and the allegations of the complaint in that respect
should be dismissed.
[Recommended Order omitted from publication.]
11 It is well established that an order requiring reinstatement of unlawfully terminated
employees and making them whole is fully supported by the finding of a Section 8(a) (1)
violation. Latex Industries, Incorporated, 132 NLRB 1, 2, enfd. as to this point 307 F.
2d 737 ( C.A. 6) ; Gordo-Ladley Plywood Products Company, 118 NLRB 1 , 14; N.L.R.B.
v. Buzza-Cardoso, 205 F. 2d 889 , 890 (C.A. 9), cert. denied 346 U.S. 923.
Local 25, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and J. C. Driscoll
Transportation , Inc. Case No. 1-CC-359. September 4, 1964
DECISION AND ORDER
On September 5,1963, Trial Examiner James V. Constantine issued
his Trial Examiner's Decision in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that, it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a brief in support thereof.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications :
In finding that Respondent had violated Section 8(b) (4) (i) and
(ii) (B), the Trial Examiner relied, inter alia, on the fact that Re-
spondent had "done more than resort to picketing; it has called a strike
1 Member Brown did not participate in the Decision and Order herein.
148 NLRB No. 91.