The Flintkote Co.

National Labor Relations Board - Board Decisions

Dec 26, 1963

145 N.L.R.B. 640 (N.L.R.B. 1963)

640 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
of their concerted or union activities, or in any other manner discriminating in
regard 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 employees
in the exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from engaging in such
activities.
WE WILL offer immediate and full reinstatement to Edith Storck, Frank Todd,
and Norma Roseta, and we will make them whole for any loss they may have
suffered as a result of the discrimination against them.
WE WILL, upon request, bargain collectively with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 959,
or any other labor organization of our employees, in the following unit of
employees with respect to rates of pay, wages, hours of work, and other condi-
tions of employment and, if an understanding is reached, embody such under-
standing in a signed agreement:
All office, warehouse, and delivery employees at our Anchorage, Alaska,
office and warehouse, excluding guards and supervisors as defined in the
Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining members of the above-named or any other labor organization.
ACTION WHOLESALE COMPANY, INC.,
D/B/A A. L. FRENCH CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. Mutual 2-3300,
Extension 553, if they have any question concerning this notice or compliance with
its provisions.
Hankins Container Company, a Division of The Flintkote Com-
pany and Southern States Regional Council , Region 5, Inter-
national Woodworkers of America .' Case No. 15-CA-,0191.
December 26, 1963
DECISION AND ORDER
On June 20, 1963, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
1 Southern States Regional Council, Region 5, is an administrative subdivision of Inter-
national Woodworkers of America , AFL-CIO, which is the labor organization involved
herein
145 NLRB No. 62.
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 641
filed exceptions to the Intermediate Report. The Respondent also
filed a brief in support of its exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and Respondent's brief, and the
entire record in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations,2 with the following addi-
tions and modifications.
1. We agree with the Trial Examiner that the Respondent domi-
nated and interfered with the formation and administration of the
Employee Welfare Committee, herein called EWC, and that in so
doing the Respondent violated Section 8(a) (2) and (1) of the Act.'
Pursuant to his findings of domination and assistance, the Trial
Examiner found that the Respondent unlawfully exacted moneys
from its employees under n checkoff arrangement with EWC. The
Trial Examiner recommended that the Respondent refund to each
of its employees the amount of money thus exacted. We agree with
Respondent's exception on this point, in the unusual circumstances
here presented. After EWC was established, the committeemen sug-
gested to the Respondent that the employees were desirous of creating
a "flower fund" for the purpose of purchasing flowers or making gifts
to employees or their families, at times when they might be afflicted
by sickness or death. Respondent approved of this suggestion and
thereafter, with EWC assistance, instituted a checkoff in the amount
of 25 cents per month from each employee's pay. The Respondent
maintained control of the accumulated fund and made disbursements
from it when requested to do so by the EWC. There is no evidence
that the fund was employed for any purpose other than as described
above. Also, there is no showing that employees were coerced into
z We hereby correct the following errors in the Intermediate Report: (1) The Trial
Examiner at several points designated Halinski as plant superintendent He was, in fact,
production manager (2) In his rationale concerning the constructive discharge of em-
ployee Nunnery, the Trial Examiner found that the training of new hires at the plant did
not begin until about 2 weeks after August 13, 1962. We do not find adequate support
for this finding in the record Nunnery's testimony did indicate, however, that no men
were being trained for his shift at the time his vacation was to begin, i e., on August 13
itself. For the reasons stated in the Intermediate Report, we agree with the Trial
Examiner 's conclusion that Nunnery was discharged in violation of Section 8(a) (3)
(3) The Trial Examiner stated that D1cElveen was not employed by Respondent until
January 1963. The record shows that he was first employed in September 1961 ; dis-
criminatorily discharged October 23, 1962; reemployed January 1963.
" In the conclusion of law set forth in the Intermediate Report it is erroneously stated
that this conduct of the Respondent violated Section 8(a) (3). We hereby correct this
error
734-070-64-vol. 145-42
642 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
authorizing this nominal amount to be checked off, or that contribu-
tions to the fund were in any way made a condition of employment.
In view of the foregoing, we believe that the flower fund collected by
Respondent was merely, as its name indicates, a flower fund, and not
the equivalent of dues levied to support EWC.4 Accordingly, we do
not adopt the Trial Examiner's recommendation that the Respondent
refund to each employee the amount of money which has been checked
off from his wages to support the flower fund.
2. The Trial Examiner found that Production Manager Halinski
made promises of job security to employees upon the implied condi-
tion that such employees abandon the Union. The Respondent ex-
cepted to this finding. We find merit in the Respondent's exception.
When the matter of job security cropped up in Halinski's conversa-
tion with Osborne prior to the Board election, and again with Nunnery
and McDaniel immediately after the election, Halinski merely prom-
ised these employees that they could keep their jobs. The second
does not show that Halinski related his utterances in this regard to
the employees' abandonment of the Union. We find insufficient evi-
dence in the record to support the inference drawn by the Trial Ex-
aminer that these promises were unlawfully conditioned, and, ac-
cordingly, find no violation of Section 8 (a) (1) with respect to these
remarks.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as 'amended, the National Labor
Relations Board hereby orders that the Respondent, Hankins Con-
tainer Company, a Division of The Flintkote Company, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them in Section 7 of the Act by (1) inter-
rogating employees concerning their union sympathies or activities;
(2) telling employees that they will not be promoted if they support
the Union; (3) stating to employees that other employees were trans-
ferred to less desirable jobs because of their union sympathies; (4)
threatening employees that all those employees who vote for the
Union will be discharged; or (5) maintaining or enforcing an illegal
no-solicitation rule.
(b) Discouraging concerted activities or membership or activities
on behalf of International Woodworkers of America, AFL-CIO, or
any other labor organization, by (1) discriminatorily discharging any
4 It is well settled that union dues in the usual and ordinary sense are those regular
payments imposed upon the membership to be made at fixed intervals for the maintenance
of the labor organization Accord: N.L R.B. v. Food Fair Stores, Inc, et at., 307 F. 2d
3, 11 (C.A. 3), enfg. 131 NLRB 756
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 643
'Of its employees; (2) demoting or transferring its employees to less
desirable jobs because of their adherence to a union; or (3) discrimi-
nating in any other manner in regard to its employees' hire or tenure
'of employment, or any term or condition of their employment.
(c) Recognizing, dealing, or negotiating in any manner with the
Employees Welfare Committee (EWC).
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right of self-organization, to form
-labor organizations, to join or assist International Woodworkers of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of mutual aid or protection
as guaranteed in Section 7 of the Act, or to refrain from any and all
such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Completely disestablish the Employees Welfare Committee
(EWC).
(b) Offer the following named employees immediate and full rein-
statement to their former or substantially equivalent jobs, without
prejudice to their seniority or other rights and privileges: Thomas
_$. Webb, C. M. Nunnery, Ivey McDaniel, Jr., Dewey Osborne, and
Daniel Wells, and make each of them and Ely McElveen whole for
any loss of pay he may have suffered by reason of the discrimination
.against him in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its
.agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to determine the amount of backpay due under
the terms of this Order.
(d) Post at its plant in Magnolia, Mississippi, copies of the attached
notice marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for the Fifteenth Region, shall, after being
duly signed by Respondent's authorized representative, be posted by
Respondent 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. Rea-
-sonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
a 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."
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the respondent has taken to comply
herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 you that :
WE WILL NOT question our employees concerning their union
membership, desires, and activities.
WE WILL NOT tell employees that they will not be promoted if
they support the Union.
WE WILL NOT state to our employees that other employees
were transferred to less desirable jobs because of their union
sympathies.
WE WILL NOT threaten employees that all employees who vote
for the Union will be discharged.
WE WILL NOT maintain or enforce an illegal no-solicitation rule.
WE WILL NOT discourage concerted activities or membership or
activities on behalf of International Woodworkers of America,
AFL-CIO, or any other labor organization, by : (1) discrim-
inatorily discharging any of our employees; (2) demoting or
transferring our employees to less favorable jobs because of their
desires for union representation; or (3) discriminating in any
other manner in regard to our employees' hire or tenure of em-
ployment, or any term or condition of their employment.
WE WILL NOT recognize or deal with Employees Welfare Com-
mittee and have completely terminated the existence of said or-
ganization as the representative of any of our employees.
WE WILL NOT in any other manner interfere with, restrain, or-
coerce employees in the exercise of the right of self-organization,
to form labor organizations, to join or assist International Wood-
workers of America, 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 mutual aid or protection, as guaranteed in Section 7 of
the Act, or to refrain from any and all such activities.
WE WILL offer the following employees immediate and full
reinstatement to their former or substantially equivalent jobs,
without prejudice to their seniority or other rights and privileges :
Thomas H. Webb, C. M. Nunnery, Ivey McDaniel, Jr., Dewey
Osborne, and Daniel Wells, and make each of them and Ely
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 645
McElveen whole for any loss of pay he may have suffered because
of the discrimination against him.
IIANKINS CONTAINER COMPANY, A DIVISION
OF TIIE FLINTKOTE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Nom.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective 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
Director, T6024 Federal Building (Loyola), 701 Loyola Avenue,
New Orleans 12, Louisiana, Telephone No. 529-2411, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on November 7, 1962, by Southern States Regional Coun-
cil, Region 5, International Woodworkers of America , hereinafter called the Union,
the General Counsel of the National Labor Relations Board, hereinafter called the
General Counsel i and the Board , respectively , by the Regional Director for the
Fifteenth Region (New Orleans , Louisiana ), issued its complaint dated January 23,
1963, against Hankins Container Company, a Division of The Flintkote Company,
hereinafter called the Respondent . The complaint alleged that Respondent had en-
gaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a) (1), (2 ), and (3) and Section 2(6) and (7 ) of the Labor
Management Relations Act of 1947, as amended , herein called the Act. Copies of
the charge , complaint , and notice of hearing thereon were duly served upon the Union
and Respondent.
Respondent duly filed its answer admitting certain allegations of the complaint but
denying the commission of any unfair labor practice.
Pursuant to notice, a hearing was held at Magnolia, Mississippi , from March 19
to 27, 1963, inclusive , before Trial Examiner Thomas S. Wilson. All parties appeared
at the hearing, were represented by counsel or a representative , and were afforded
full opportunity to be heard , to produce , examine, and cross-examine witnesses, and
to introduce evidence material and pertinent to the issues . Oral argument at the
close of the hearing was waived. Briefs have been received from General Counsel
and Respondent on May 23, 1963.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Hankins Container Company, a Division of The Flintkote Company, is, and has
been at all times material herein , a corporation duly authorized to do business in
the State of Mississippi , maintaining a plant at Magnolia , Mississippi , where it is,
1 This term specifically includes the attorney appearing for the General Counsel at the
hearing.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and has been, engaged in the manufacture, sale, and distribution of corrugated con-
tainers and paper products. During the past 12 months, which period is representa-
tive of all times material herein, Respondent, in the course and conduct of its business
operations as described above, purchased materials and supplies valued in excess of
$50,000, which were shipped directly to it in the State of Mississippi from points
outside the State of Mississippi. During the same period, Respondent sold and
shipped products valued in excess of $50,000 from points within the State of Mississippi
to points outside the State of Mississippi.
The Trial Examiner finds that Respondent is engaged in commerce within the
meaning of the Act.
H. THE UNION INVOLVED
Southern States Regional Council, Region 5, International Woodworkers of
America, is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. Interference , restraint, and coercion
Sometime in early November 1961 the Union began a campaign to organize the
employees of the Magnolia plant.
By early December 1961 John Raymond Prescott , a deacon of the local First
Baptist Church and a supervisor who had interviewed and hired many, if not most, of
the employees when the Magnolia plant commenced operations in July 1961, asked
employee Clarence Easley if he had any union cards, if he had signed one, and if he
were taking an active part in the union campaign , and ended this conversation by
telling Easley that Plant Superintendent Richard T. Halinski knew about the union
campaign , was angry about it, and "might fire anyone who had anything to di
with it." 2
After the union campaign began , Halinski handed each of his supervisors such as
John Raymond Prescott , John Lee ( night-shift foreman ), Marshall Terry ( foreman
who subsequently signed the discharge slips of employees Wells and McElveen),3
and John Cook ( printing foreman ),4 a single page of the "Do's and Don'ts for Super-
visors." This sheet indicated that supervisors could express their own opinions
about unions to the employees but could not ask any specific questions of the em-
ployees during election campaigns.
Thereafter Halinski instructed his supervisors to express their "opinions" to the
employees under them. Prescott and Lee admittedly attempted to express such,
opinions to every employee on their shifts. The others apparently were only les&
thorough
According to the testimony of each of these foremen , he merely expressed to the
various employees his own "opinion" on the subject of unions . Their testimony,
both as a group and individually , at the hearing was notable for the exactness of their
memories as to what they had not said in these conversations and their almost total
failure of recall as to what they had actually said therein . Their testimony was not
convincing.
Sometime previous to July 1962 , Prescott had transferred employee Jimmy
Stewart from his position as second in command of the corrugator machine to
manual work in the plant. About July when Stewart wished to transfer back to the
day shift , he spoke to Halinski who was doubtful about such transfer and then inquired
if Stewart knew that there were unionmen in town and how Stewart felt about the
Union.5 About the first of July, Stewart asked Prescott to be transferred back to the
corrugator . Prescott was noncommittal saying that he and Halinski had heard
Stewart was "for the Union" and they "were both disappointed ." Not long there-
after Foreman Lee came and asked Stewart at his workplace how Stewart felt about
the Union and , after Stewart had said that he was undecided , told Stewart that he,
Lee, had heard that Stewart would never get his job back on the corrugator "because
2 As this event occurred more than 6 months prior to the filing of the charge herein, It
cannot be found an unfair labor practice but can be used to explain subsequent events
occurring within that 6-month period
E These slips were made out by Halinslri but signed by Terry
4 Others with equal authority to hire, lay off, transfer, promote, shift, and discipline
employees, to effectively recommend pay increases and discharges, etc., sufficient to prove
them supervisors within the meaning of Section 2(11) were E H Mixon and Floyd Smith.
S This inquiry violated point 1 of the "Don'ts" on the instruction sheet "Not to inquire
what an employee thought of a union "
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 647
they found out [Stewart] was for the Union" and "they couldn't promote a man in
[to] a higher position who was siding against the plant." 8 About the middle of
July, shortly before Stewart quit Respondent's employ, Stewart again saw Halinski
who told Stewart that "two or three" had told him that Stewart was "for the Union"
even after Stewart had informed Halinski to the contrary.
Employee A. R. (Ray) Simmons, a witness for the Respondent, acknowledged at
the hearing that he was keeping Halinski informed as to the employees present at
union meetings and the events occurring there. He also informed Halinski that the
Union's strongest point was "job security." Simmons was unable to recall the exact
conversations with Halinski other than that he "volunteered" such information.
About a month before the election of July 23, 1962, Halinski met employee Dewey
Osborne at the entrance of the plant and asked Osborne how he felt about the Union
and then added that he had heard that Osborne "was for job security." When Osborne
agreed , Halinski told Osborne , "Well, as far as I am concerned you've got a job here
at the plant as long as you want it." 7
Beginning a few weeks before the election of July 23, Foreman Marshall Terry
made several inquiries of employee Dan Wells as to how he felt about the Union
and, on one occasion, if Wells thought that "the union activities that was going
around was having anything to do with a lot of men quitting ." In this same
period of time Prescott asked Wells how he felt about the Union and stated that "there
was a lot of men out there he (Prescott) would like for them to consider that he
helped hem get their job up there and get on, and that he didn't see where the Union
had anything for us."
A short time before the election C. M. (Kit) Nunnery substituted for Foreman
John Lee as supervisor of the evening shift while Lee took a vacation for a week.
After one of the daily supervisors ' meetings that week, Halinski asked Nunnery what
was all this "stuff" he had heard about the Union and about the fact that he had
"heard the night shift was really hot for the Union." Nunnery denied having heard
much about it. Halinski then stated in emphatic , but unprintable , language that
Respondent did not need any union.
The night before the election employee McDaniel and Foreman Lee walked out
of the plant together. McDaniel told Lee that if there were one vote for the Union
at the election on Monday, it would be McDaniel's vote because Respondent had
transferred him from an operator 's job on a press to a helper 's job on the press sup-
posedly for 3 or 4 weeks only and had never thereafter returned him to his oper-
ator's job as had been promised . Lee thereupon promised McDaniel the operator's
job on the new press which Lee stated was due "pretty soon" if McDaniel had not
been returned to the operator 's job on the big press before that time . Lee ended
the conversation by saying, "I hope you don't take the wrong stand Monday because
... if you do ... you stand a chance of losing your job ... you're a good worker ...
I'd hate to see you go." 8
On July 23, the consent election was held resulting in a 41 to 11 vote against the
Union Kit Nunnery acted as the union observer and challenged the ballots of
Supervisors Mixon, Lee, Terry, and Smith.
2. Employees Welfare Committee (EWC)
The birth of EWC is shrouded in considerable mystery in that a couple of witnesses
for Respondent testified that there were one-or two-meetings ( one in the townhall
of Magnolia but nobody suggested the meeting place of the second meeting, if any),
at which , according to these witnesses ,9 the employees present-20 to 25 according
e This violates point 5 of the same "Don'ts": "Not to threaten, coerce , or discipline an
employee to influence an employee in his right to belong to a union "
7 This is another violation of point 5 of the "Don'ts": "A promise of benefits to influence
an employee "
I Another violation of point 5 of the "Don'ts"
9 The testimony of the employee witnesses for Respondent was, like that of Respond-
ent's supervisors and Halinskl , characterized by the use of broad generalizations , evasions,
uncertainties and an unusual , if not unbelievable , inability to recall facts in any detail
On the other hand the witnesses for General Counsel universally testified straight-
forwardly to facts in detail regardless of whether the answers were favorable or un-
favoiable to their cases or embarrassing to themselves personally. Although on occa-
sion cross-examination went back to events in grammar school, those witnesses remained
unshaken by the cross-examination.
Thus the difference between these two sets of witnesses was as great as that between day
and night. Although the transcript proves the above, it was even more evident when the
witnesses were seen in person.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to one witness-decided to ask Respondent if they could have a committee if the
Union lost the election on July 23.
One fact stands out and that is that nothing about an employee's committee was
decided until the Union lost the election of July 23.
Then it was that Joe Brown, Respondent's maintenance man and one of the few
witnesses who claimed to know anything of the meetings regarding a committee,
went to Halinski and asked if the employees could have such a committee. Halinski
agreed. In fact he stated that he "just wanted it started." io
With this assurance Joe Brown during working hours asked fellow employees
Lynn Brown ii (a cosuin) and A R. (Ray) Simmons of the day shift if they would
act as committeemen. They agreed. Lynn Brown thereupon requested A. C.
Standifer and Gary Dunaway 12 successfully to become members of the Committee
for the afternoon shift.
About a week after the election, or about August 1, these five committeemen met
in the plant cafeteria and then sent Joe Brown to Halinski to see if he would meet
with them. He would.
Halinski met the five in his office, told them that they had been gathered in order
to form a committee, that he thought they were the five best men in the plant for
committeemen, that they would be known as the Employees Welfare Committee, and
that they would handle "grievances and gripes" of the employees for the benefit of
the employees and of the Company. Halinski then told them that there was friction
and dissension in the plant which it was their duty to take care of, that there were
men who were still "steaming" about the Union and the election and were still for
the Union who were creating this "dissension, friction and disturbances " Halinski
instructed the committeemen that they were to inform those who were creating this
friction and dissension that, unless they straightened up, they were considered to be
"undesirable employees" and should seek employment elsewhere. Halinski men-
tioned the names of four such employees: Tom Webb, Kit Nunnery, Ivey McDaniel,
and Dewey Osborne. Halinski specifically mentioned one episode which occurred
in the cafeteria in front of Foreman Lee between Nunnery and an employee known
as John Beecham Phelps as an example of the type of prounion-antiunion friction
he was talking about. Halinski pointed out that he had spoken to all of these named
individuals but that their feelings and attitude had not changed. He also told the
Committee that he particularly admired Osborne, thought a lot of him, and just
could not understand why Osborne would not change his attitudes and ways. The
Union and the election were also mentioned at some length. The meeting apparently
ended with Halinski stating that he could not go through similar elections every year
for it took too much out of him.13
While Halinski testified that he granted these men permission to form the Com-
mittee, he was careful not to define their duties any more definitely because he did
not want them to get up a "full head of steam" and find himself "out in the outfield"
and so prefeired to make a determination of their permissible duties as the occasion
arose.
Halinski knew that all four of the men he named were strong prounion employees.
He had been surprised that Nunnery had acted as the union observer at the July 23
election. The Friday before the election, McDaniel had told Foreman Lee that, if
one vote was cast for the Union in the election, that vote would be case by McDaniel.
Halinski also acknowledged that he "suspected" Osborne of leaning toward the
Union. Subsequent events also prove that he had the same suspicion about Webb.
Following this meeting 14 Halinski had a notice posted on Respondent's bulletin
board notifying the employees of the formation of this Employees Welfare Com-
mittee, naming the appointed committeemen and signed by himself.
10 Subsequently Halinski testified that he "was not too keen about the idea of forming"
the committee but went along with the idea.
11 In the transcript Lynn Brown is often referred to as "Len" Brown.
12 This name is frequently spelled "D-u-n-n-a-w-a-y" in the transcript.
PS Halinski denied that he had used the term "undesirable employees" with the Com-
mittee but acknowledged that he had authorized the committeemen if they thought it
advisable, to inform the employees in the plant that he should "straighten up" or else
seek employment elsewhere Halinski further admitted that he had told the Committee
that, if the men he had spoken to had straightened up after his talking with them, they
could have remained with the Company as long as they wanted to With this testimony,
the Trial Examiner believes that it was immaterial as to whether Halmski used the term
"undesirable" or not. However, the Trial Examiner believes and, therefore, finds that
Halinski actually used the term.
14 One or two of the witnesses thought that there had been two meetings on consecutive
days but that the discussion had been substantially identical
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 649
Among the other "gripes and grievances" which the Committee handled were:
(1) the demand of employee Ravencroft for an increase in pay-subsequently granted
by Respondent ; ( 2) the request of employee Easley that he be transferred to the
day shift because of personal differences with Foreman Lee-subsequently refused
by Respondent ; and (3 ) the request of employee Paul Hinds that he be promoted
to the position of an operator-granted by Respondent.
In addition the Committee took up a quarrel between employee Dan Wells and
his foreman , Floyd Smith . In this instance the Committee called both Wells and
Foreman Smith in before them to give their versions of the incident . Subsequently,
Halinski informed the Committee that they could no longer cause a supervisor to
come before them for fear that it might embarrass the supervisor.
3. The "resignation" of Thomas H. Webb
At the time of his "resignation ," Webb was the operator of the newly installed
Bobst machine , a machine manufactured in Switzerland . Webb had helped the
Swiss representative install the machine in the plant and had received about 2
weeks' training under him.
Webb who had been picked by Respondent for the Bobst job had been having his
difficulties as the operator of the Bobst machine and had suggested that Respondent
transfer him to a truckdriver 's job, a job in the office , or practically anything except
the Bobst machine. He had obviously found the Bobst a difficult job. His requests
were rejected.
Webb did not sign a union card.
In addition to his work on the Bobst, Webb also had been "moon -lighting" since
shortly before the election as a temporary desk clerk at a motel in downtown
McComb, Mississippi.
As a result of the aforefound organizational meeting of the EWC, Committeeman
Gary Dunaway took it upon himself, in accordance with the suggestion or orders
of Halinski , and had a talk with Webb in the dieroom . Dunaway asked Webb if he
could still get the job at the motel where he had been working part time. In answer
to Webb's query "why?" Dunaway said, "well , yesterday . Mr. Halinski called
us into his office and appointed a Welfare Committee to talk to the men that had
supposedly voted for this union , and he told me to come talk to you , and it's up to
me as a committeeman to get rid of you , or he, Mr. Halinski, will "
In order to check the truth of Dunaway 's statement , Webb went to Halinski to
find out about his status with the Company . In answer to Halinski's question as
to what he meant, Webb said , "Well, you know what I mean . .. if you want me
fired or don 't want me to work here, you come tell me yourself and not send one of
your committee men to do it for you." Halinski disclaimed any knowledge and
Webb stated , "Now you know I didn't have any part in the union activity" To
this Halinski answered , "Yes, and I know why , because your old man took the car
keys away from you." After Webb told Halinski he was a "damn liar," Halinski
rejoined that Webb had "cursed Mr. A. B . Regan 15 . and asked him to leave."
Webb denied this and asked if Halinski was going to fire him . Halinski answered,
"No, I am not going to fire you . You can go back out there in the plant and go to
work, but I have got some men that are going to run you off , and I can't have the
possibility of having you out there screwing up my machines . I won't stand for that "
Webb stated that he could not work under those conditions and "resigned "
A week or so later Webb became the resident manager of the motel in McComb.
4. The "resignation" of C M . ( Kit) Nunnery
Nunnery was one of the original employees in the plant. He was the first evening
shift foreman but was subsequently replaced in that position by John Lee. Nunnery
became the operator of the little press, a position he retained until after the election
of July 23.
Nunnery and Lee had a long conversation about the Union in December 1961
when Lee asked him how he felt about the Union.
When Lee took a week's vacation sometime prior to the election , Nunnery again
became the evening foreman replacing Lee.
15 A B Regan was president of the board of supervisors of Pike County which built with
public funds Respondent ' s Magnolia plant as part of the Mississippi program of "Agricul-
ture and Business " The Charging Party sought to show during the hearing , after the
matter had been opened on cross-examination by Respondent 's counsel , coercion of em-
ployees by public officials at the time of the union election As such coercion was not
alleged in the complaint, the Trial Examiner refused to permit the testimony
'650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After one of the supervisor 's meetings just prior to the beginning of the evening
shift, Halinski asked Nunnery "what was this stuff that he heard about the Union"
and that he had heard "the night shift was really hot for the Union ." Halinski asked
what Nunnery had heard and, when Nunnery was noncommital , Halinski added
in emphatic , but unquotable , language that Respondent did not need a union.
Nunnery signed an authorization card for the Union on December 11, 1961. He
also acted as the union observer at the election of July 23, 1962, and, despite the
fact that he challenged the votes of Foreman Mixon, Lee Prescott , and Floyd Smith
as supervisors , the Union lost the election 41 to 11. Halinski acknowledged his
"surprise" at seeing Nunnery as the union observer and claimed this was his first
knowledge of Nunnery 's union feelings.16
Immediately after the election was over , Halinski came to the big press to find
out from Nunnery and McDaniel, the helper, why they had been in favor of the
Union. Upon hearing that it was "job security," Halinski promised them both lob
security . This 45-minute conversation is further described in the next section of
this report.
After the close of the evening. shift a few days after the election, Nunnery and
Foreman Lee walked into the cafeteria where a few remarks about the election
passed between employees John Beecham Phelps and Nunnery with the result that
Nunnery pushed Phelps ' head down between his legs as he was sitting on a chair.
Lee instructed both men to stop . That ended that.
At the EWC formation meeting in Halinski's office a few days thereafter Halinski
pointed out this Nunnery -Phelps cafeteria incident as an instance of the type of
"friction , dissension and disturbance " which it was the duty of the committeemen
to stop. Halinski described this incident in such a way as to indicate to the men
present that it was a union -antiunion quarrel and, significantly , indicated that Nun-
nery was the man the committeemen were to speak to , not the antiunion Phelps.
Soon after the election Foreman Lee began assigning Nunnery to manual work
other than the operation of the little press even though there were orders which were
to be run on that press . It is undenied in the record that this was the first time
Nunnery had been given such odd jobs while orders for the little press were
outstanding.
A few days after the election when Nunnery reported for work he found the
little press in operation in the midst of completing an order. As was the practice,
Nunnery checked a box or two which the machine was turning out and found them
to be correct . Nunnery had not stopped the machine nor had he inserted his name-
plate in the machine, neither of these being customary practice while the machine
was in operation turning out an order at the change of shifts Foreman Lee came
up and asked if Nunnery had checked the boxes. Nunnery told him what he had
done. Lee then said that if Nunnery "couldn't stop the machine and check the
boxes that [he] knew what [he] could do ." Nunnery asked him what that was.
Lee replied that Nunnery "could quit."
For personal reasons Nunnery had requested and secured approval from Halinski
through Lee that he , Nunnery, could take his week 's vacation beginning on August 13
instead of at the time it had originally been scheduled . However, on the Thursday
prior to August 13, Lee informed Nunnery that he could not have his vacation
beginning on August 13 because they were going to have to train some new employees
and added further that he did not know when Nunnery would be able to get his
vacation.17
On August 13 Nunnery reported at the office of Halinski and told him that he
was resigning . Halinski stated that "it was an unfortunate situation that [Nunnery]
was going to have to resign ." 18 During the course of this rather lengthy conversation
Nunnery told Halinski that , if he had let Webb go on account of union activities,
Halinski had been wrong because Webb would not even talk to a union representa-
tive or accept any union literature . Halinski answered that he "might have made
a mistake , but [he] didn 't think so."
Nunnery received his paycheck and his vacation check He has never been re-
employed by Respondent since.
16 Halinski testified that he had " no idea" that Nunnery was prounion until the day he
acted as the union observer and then added , "I believe that putting hun [Nunnery] on as
a temporary overseerer [sicl in John Lee's absence would so indicate "
17 Actually the training of these men did not start until about 2 weeks after August 13.
'B Halinski appraised Nunnery at the hearing as a man who would have gone "a long
way with the Company."
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 651
5. Ivey McDaniel, Jr.
McDaniel was hired by Respondent on or about August 29, 1961, at $1.20 an
hour. When he quit almost exactly a year later, he was making $1.37 per hour, a
5-cent reduction for his last 8 or 9 days of work.
McDaniel began his employment as the operator of the big press. After a month
or so as such operator, he was told that he would make a better operator if he had
some experience as a helper and was thus transferred, supposedly for a month or
so, to the job of helper with the promise that he would be returned to his job as
operator.
In December 1961 McDaniel signed a union card, attended union meetings, and
actively solicited others to join the Union.
On the Friday prior to the election on Monday, July 23, 1962, Foreman Lee and
McDaniel got into a conversation about the coming election during which McDaniel
told Lee, "If there is not but one vote for the Union on Monday, you can say that
is Ivey's vote," because McDaniel felt that the Union could help not only himself
but all the other employees in the plant. McDaniel mentioned the months he had
been working as a helper on the little press despite Respondent's promise to return
him as operator on the big press. Lee thereupon promised McDaniel the very next
opening as a press operator and ended his conversation with the statement, "I hate
to see you go the wrong way because ... I know that the Union won't work in this
plant .... You're a mighty good man .... You're one of the best men I have
got on the shift and . . . I'd hate to see you get fired over it.... I hope that you
don't take the wrong stand Monday because ... if you do ... you stand a chance
,of losing your job. You're a good worker . . . . I hate to see you go."
On Monday, immediately after the 41-to-11 election, Halinski appeared at the
little press which Nunnery was operating with McDaniel as his helper, as noted
-heretofore, and started a conversation lasting from 45 minutes to an hour by saying,
"Why, I'd like to know why in hell you all felt the way you did about the union?"
Both Nunnery and McDaniel emphasized that they felt the Union could get them
job security and fringe benefits. Halinski answered that, if job security was what
they wanted, they would "have a job as long as I am here" so long as their work
in the future was as good as that in the past. He also stated, "I don't need any of
them sons of a bitches from up yonder in here to tell me what to do . .. . I'm run-
ning this plant for the best of the people and to the best of the plant. . . . And I
want to tell you again . . . I don't need none of them sons of a bitches up yonder to
.tell me what to do because I'm God in this plant." 19
At the formation meeting of EWC about a week later, McDaniel's name was one
of those Halinski specifically mentioned.
Respondent's record on McDaniel's work assignments proves that, until on or
about August 13, 1962, McDaniel had worked steadily either as an operator or
helper on the presses. About this time Foreman Lee informed McDaniel that he
was going to have to use McDaniel "in the plant" on orders "from up front" and
thereafter began assigning him to any and all manual jobs around the plant as ordered
by Halinski.
McDaniel then went to see Halinski and asked why he was being transferred from
the presses. Halinski answered that Respondent was going to train another man
"that will take more interest in his job than what you are showing." McDaniel asked,
"Is that it, or is it because I voted for the union?" Halinski replied, "Well, as a
matter of fact, that is it .... You know, there is a winner and a loser and . . . you
went the wrong way and you are a loser . . . I want to also tell you there is a
5-cent cut in your pay .. . . When you was took off the press and put out in the
plant, we are automatically taking a nickle off of your pay. . . . If you don't like
that you know what you can do . . . . You've got your card in your pocket and you
know where the clock is . . . . You can punch out."
However, McDaniel chose to return to his manual labor in the plant at a 5-cent
per hour reduction in pay.
The following day Foreman Lee assigned McDaniel to help Committeeman Lynn
Brown set up the Bobst machine. While working, McDaniel told Brown about his
transfer into the plant. Brown then said, "Ivey ... I hate to see it happen the worst
>a Halinski's denial concerning this conversation was limited to the fact that he would
not have used the Lord's name in vain Otherwise Halinski's memory of this conversation
was practically negligible In fact Halinski's memory throughout his testimony was more
than inordinately sketchy His testimony was replete with answers indicatinz his in-
ability to recall Accordingly, the Trial Examiner accepts the testimony of McDaniel as
Mound above.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the world . . . . I would rather for it almost to happen to me than I would to,
see it happen , but . . . y'all are going to have to go .... The ones of y'all who
voted for the Union . . . you're going to have to go." McDaniel asked how Brown
knew. Brown answered, "I got my information from the big man." Brown then
asked if he knew where he could find another job adding , "Well ... if I was you
... I'd be looking around and find one cause ... I'd hate to see you lose a week's
work and not get a week's check because . . if you are like me ... if you lose a
week's work it will hurt you .... You and Dewey Osborne is the two that was
going to have to go ... your partner Kit is already gone."
As a result of this conversation McDaniel asked Foreman Lee the following day
or two if "we" were going to be fired . Lee answered that he truthfully could not say.
McDaniel then went to Hahnski and asked if they were going to be fired. Halinski
inquired as to where McDaniel got that idea. McDaniel answered , "Well, Mr. Lynn
Brown on your Welfare Committee came to me 'and told me that you told them that
we had to go and for them to tell us where we could be looking for another job."
Halinski then stated , "Well, Ivey, you know that when you play a game there is a
winner and a loser and . you went the wrong way and . . you are automatically
the loser." When McDaniel asked, "You mean because I voted for the Union that
I am going to be fired ?" Halinski replied , "We're giving you your choice . .
You can quit or we'll fire you sooner or later . . Believe me, we're looking for
the reason now. Your partner , Kit Nunnery, has already gone . You and
Dewey are going to have to go . . . . You know that you and Kit were leaders in that
thing . . . . That's the main reason you all got to go because . I'm not going
to put up with it another year because it takes a lot out of me."
A night or two later McDaniel informed Foreman Lee that he had decided that he
"might as well quit because . . . I don 't want to get fired." Lee answered , "I hate
to see you go . . . . You're one of the best men I have on the shift and . . . I hate
to see you go . . . . I hope you don'.t never hold no hard feelings against me for you
having to leave."
Thus did Ivey McDaniel "quit" on August 29, 1962. He feared that , if discharged,
he would be unable to secure work elsewhere in the neighborhood.
6. The discharge of Dewey Osborne
Osborne was hired by Respondent about October 1961 and became the operator of
the big press.
He signed a union card .in December 1961. He also attended one union meeting
about a week before the July 23 election and solicited other employees to join the
Union both at the plant and outside.
About a month before the election Halinski and Osborne met at the plant parking
lot where Halinski asked Osborne how he felt about "this thing"-referring to the
Union When Osborne answered that he did not know, Halinski stated he "had heard"
that Osborne was after "job security" and that , as far as Halinski was concerned,
"You've got a job here at the plant as long as you want it."
After the Union's defeat at the election, Osborne had conversations with a number
of other employees in which Osborne stated that he hoped that they knew what
they had been doing when they voted against the Union and would not live to regret
their vote.
At the formation meeting of EWC Halinski specifically mentioned Osborne as one
of those causing "friction, dissension and disturbance " and therefore, one whom the
Committee should tell that he was an "undesirable " employee.
This time Committeeman Lynn Brown took on the job of carrying out Halinski's
instructions. About a week after the formation of EWC he informed Osborne that
"the 11" had to go, that "They was after [Osborne and the others] and we had to go."
On or about September 7 Foreman Lee brought employee Givens over to Osborne's
big press and ordered Osborne to train Givens as its operator.
Sometime later in another conversation with Lynn Brown , Osborne asked Brown
if the EWC had the authority to fire the employees Brown denied that EWC com-
mitteemen had such power and, as Osborne obviously did not accept his word for it,
called Committeeman Standifer over. The three men went out on the truck platform
where Standifer confirmed Brown's statement that the committeemen did not have
authority to discharge the employees Osborne remarked that the committeemen
were "damn fools" to carry out Halinski' s instructions about the undesirables . There-
upon Osborne returned to his work
Being troubled by these remarks of Lynn Brown to the effect that " the 11" 20
would have to go, Osborne spoke to Foreman John Raymond Prescott , saying,
20 Obviously a reference to the 11 prounion votes in the July 23 election
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 653
"If Halinski did not want me working , why didn't he come see me like a man instead
of sending one of his flunkies to do his dirty work?"
Shortly thereafter on Friday, September 14, Halinski appeared at the big press and
took Osborne into the dieroom where he asked if Osborne had any prospects for
another job. In answer to Osborne's question of "why," Halinski continued, "Well,
you know why as well as I do . . . . You can't stay here." Osborne refused to quit
whereupon Halinski said, "Dewey . you know . . . you had a good thing going
here . Well, I like you personally and as a worker . There's no son of a
bitch going to come in this plant and play God . I'm God in this plant."
Halinski then asked what "that damn fellow" promised Osborne. Osborne replied
that the organizer had promised him job security to which Halinski replied, "Well,
hell . . I promised you that a long time ago." Osborne suggested that Halinski
lay him off so that Osborne could draw unemployment compensation 21 but Halinski
refused on the grounds that "that raises the rates." Osborne then suggested that
Hahnski fire him but Halinski answered, "No, I'm not going to do that, because I
don't think you're going to be here very much longer."
About 2 hours later Foreman Lee came past Osborne's press and remarked, "Dewey,
I hear this is your last night. I hear you are quitting." Osborne again denied any
intention of quitting.
Osborne reported for work as usual on Monday, September 17, and found that
his timecard was missing from the rack. About 10 minutes thereafter Foreman Lee
sent Osborne to Halinski's office where Halinski told him that he thought that Osborne
and he had "an understanding." Osborne denied that there was any understanding
and that he was present to go to work, that "I have punched in and I intend to work."
Halinski stated, "Well, I can't have you on the floor any longer." When Osborne asked
why, Halinski said, "You know why as well as I do." Osborne refused ",to quit."
Halinski then said, "Well, I just can't have you here anymore" and discharged
-Osborne.
Osborne has never since been reinstated.
7. The discharge of Dan Wells and Ely McElveen
Dan Wells was hired by Respondent about March 1962 in the finishing department
whereas Ely McElveen went to work for Respondent about September 15, 1962.
Both Foreman Marshall Terry and John Raymond Prescott inquired of Wells prior
the election how he felt about the Union. Wells was noncommittal.
About 2 or 3 weeks after the election Wells went in to see Halinski because of a
rumor he had heard throughout the plant that Respondent intended to fire the 11 who
had voted for the Union. Wells informed Halinski of what he had heard and that he,
Wells, was one of the men who had voted for the Union and then asked what he could
expect Halinski asked how Wells felt about the Union now. Wells answered that he
was still to be convinced differently about the Union. Halinski then stated , "Well,
that's what we hope to be able to do . . . as you know . . there is some of the
men out there that 's not willing to drop it after the union election , and they are
keeping a stink stirred up . . You know we are going to have to get rid of
them . . I haven't heard anything out of you and you don't have anything more
to worry about."
Some time during the day of October 19, EWC Committeeman Gary Dunaway
suggested to a group of employees consisting of Wells, McElveen, Jim Brown, and
Layne that the employees were not making enough money and suggested that the em-
ployees should band together as a group and demand more money from Halinski
,or walk out. Wells and McElveen agreed. Dunaway stated that he would talk to
the other men on the shift, see how they felt about it, and they would have a meeting
at the end of the shift 22
u Referred to in Pike County as "shade tree money."
21 Dunaway 's testimony indicated that Wells was the person who suggested the need of
the raise , requested permission for a meeting from the foreman who, in turn , secured per-
mission therefor from Halinski, and gave him, Dunaway, orders to get the employees
together for the meeting . Dunaway's testimony was that he personally had tried to talk
Wells out of the idea as business was so poor.
Roth Wells and McElveen testified credibly that Dunaway was the individual who in-
stigated the meeting and the "raise or walkout" technique
Dunaway was a singularly unimpressive witness whose testimony was tailored to pro-
tect Dunaway from any possibility of being thought by anyone to have ever had at any
time any treasonable thought as to the Company's interest. In addition, his testimony was
in large part completely uncorroborated by either Wells, McElveen, or by the foremen in-
volved. Accordingly, the Trial Examiner could give little , if any, credence to the self-
serving testimony of Dunaway.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At 3:30 p.m., the end of the shift, all the employees gathered in the cafeteria as
planned. A number of foremen were also present. Wells became the spokesman
of the group and requested Foreman Cook to get Halinski into the meeting in order
to discuss the matter of raises.23 Halinski came into the meeting with a statement
that he knew what they wanted and was sorry but could not give a raise at that time.
Wells reminded Halinski of several unkept promises about new equipment and pro-
duction (incentive) rates. He also made the statement that all the employees present
had agreed to stick together as a group for a raise or a walkout.24 At this point EWC
Committeeman Lynn Brown questioned whether the men as a group had so agreed.
Wells asked all those who would stick together for a raise or a walkout to stand up.
Two men stood up: Wells and McElveen. As the meeting was breaking up and the
men walking out, Halinski stated that, "as they had the meeting as a group, I re-
spected that, certainly had no animosity toward any one of them. As far as I was
concerned it was their opinion. The thing was talked about, discussed and it was,
over and that was it for me."
As the men were leaving the cafeteria Dunaway, who was some 20 to 25 feet
away, testified that he heard McElveen ask Joe Brown, another committeeman, if
he was satisfied with his wages and, upon receiving an affirmative answer said "you
S.O.B. you ought to be." 25
On Monday morning, October 20, before the shift began, Dan Wells and McElveen
were seated alone at a table in the cafeteria. Other employees, including Commit-
teemen Joe Brown and C. J. King and others, were seated at other tables in the
cafeteria. According to their testimony, Wells and McElveen were "mumbling"
to each other. Brown testified that he thought he beard one of them "mumble"
some comment like "they are a scared bunch of S.O.B's." Thereupon C. J. King
stood up at his table and said to Wells and McElveen, "I am no more of a S.O.B.
than you are." Then, according to the testimony given by Joe Brown:
A. I believe I said, I don't remember quite well, I believe I told them if
they was so dissatisfied, if they wanted to walk out why didn't they walk out;
Why in hell didn't they walk, or something. I don't remember exactly.
Apparently after that, according to the testimony of C. J. King whose memory was
hardly better than that of Joe Brown, an employee named J. W. Edwards and Wells
"had a few words." 26 At this point the 6:55 starting bell ended the conversation and
the men went to work 27
Wells and McElveen worked together all day Monday, as they had on the previous,
Friday.
According to the testimony of Halinski, he received numerous reports during this-
Monday regarding the "agitation and disturbances" which Wells and McElveen were-
creating while they talked and worked by themselves 28
23 According to Dunaway, when Wells requested Cook to get Halinski he referred to
Halinski as "the big boy." Others testified that Wells used the name "chief "
Respondent attempted to make much of Wells' use of whatever term he may have used,
to denote Halinski Thus it is interesting to note that Foreman Lee referred to Halinski
as "up front," Joe Brown as "the head," and Lynn Brown as "the big man." Respondent
was groping for straws
24 Despite his assurances to Wells and MeElveen on this point, Dunaway testified that
he had not told the employees what the meeting was about
as While Dunaway might have been shocked at this reference made to Joe Brown, it is
evident from Brown's own testimony that he was not because, as he volunteered, he uses
that expression himself "everyday." Brown, could not even remember who made the
statement to him at that time
2a Employee Edwards was not called as a witness C J King's testimony on this point
shows that he was willing, and did, attribute the vulgar remark to each of the alleged
participants in accordance with the way Respondent's counsel asked the question On
the other hand the answer quoted above by Joe Brown is only typical of the type of un-
certain testimony he contributed. Accordingly, the Trial Examiner found it difficult to
place much faith in the testimony of either King or Brown.
2'' Joe Brown's most emphatic testimony was that he was always out of the cafeteria
and at work by 6.30 am. As Brown was purporting to testify to events taking place at
or about 6.55, this testimony throws further doubts upon the testimony of Joe Brown
28 It is an interesting commentary that Respondent produced no one at the hearing who
heard a thing said by either Wells or McElveen Respondent did produce several who
purported to have heard hearsay reports on what Wells and McElveen were supposed to,
have said-but no one who personally heard a thing
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO . 655,
Sometime during Monday Committeeman Dunaway came to Wells and McElveen
as they were working and stated that they must both feel "mighty let down" because
of the Friday meeting and feel as though they "did not have a friend in the world."
He said that he had hated to do it "but there was nothing that we could do" and
inquired if they wanted the employees to walk out if Dan and Ely got fired. Both
men acknowledged having told Dunaway and some others that they were "chicken."
About 9:45 a.m. Tuesday, October 23, Halinski called Wells and McElveen into
his office and told both that they were "fired as of now" for having called other em-
ployees names and because of Wells' bad production for the past several days. In
this charge of poor production he specifically exempted McElveen. It was pointed
out to Halinski that, for the period he mentioned, McElveen and Wells had been
working together.
During his testimony regarding these discharges Halinski stressed the fact that he
had no animosity because of the mass meeting of October 19 and that it was a closed
book for him. In that regard Halinski testified as follows: "I certainly would not
say that the thing was over as far as I am concerned and then go around and fire
somebody, because if I did that would be pretty silly on my part. I would probably
get the people to walk out, and I wouldn't have done it, and I didn't do it." Halinski
stressed the fact that he discharged Wells and McElveen solely for the agitation and
name calling on Monday plus Wells' poor production.
However, immediately upon discharging Wells and McElveen at this time, Halinski
made out discharge slips for them on which, in his own printing, Halinski gave as
the reason for the discharge: "inciting a mass walkout." These slips were thereafter
signed by Marshall Terry.
Wells has never been reinstated 29
McElveen requested reinstatement from Halinski who reemployed him on Jan-
uary 28, 1963, because he "felt Ely probably was a victim of circumstances. I still
feel that way. If I didn't, he wouldn't be back."
B. Conclusions
1. Employees Welfare Committee
As the Trial Examiner understands Respondent's brief, Respondent is defending
against the charge of domination of EWC on the ground that EWC is not a labor
organization apparently because, in the phraseology of the brief, EWC was never
"vested" with powers or authority to "negotiate or deal" with management on matters
of wages, hours, and working conditions in that EWC could not make any "final
decision" in any of these matters or on the question of hiring and firing.
However, Section 2(5) of the Act defines a "labor organization" as follows:
The term "labor organization" means . . . organization of any kind, or any
agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.
"To bargain collectively" is defined by Section 8(d) of the Act in essential part as
follows:
For the purposes of this section, to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect to wages, hours,
and other conditions of employment ... .
It is true that at the formation meeting Halinski outlined the duties of the
Employees Welfare Committee generally to be: (1) to handle employee "gripes
and grievances" for the "welfare" of both the employees and Respondent; and
(2) to eliminate the so-called "friction, dissension and disturbances" between the
prounion and antiunion employees by informing "those who were creating" such
that they were considered "undesirable employees" who, therefore, should seek em-
ployment elsewhere. It must be noted here that in enumerating "those who were
creating" friction of the sort to which he was referring, Halinski specifically named
only four employees: Webb, Nunnery, McDaniel, and Osborne, all of whom
Halinski suspected or knew to be prounion employees and among the "11" who had
voted for the Union. He further clarified his intentions as to these prounion em-
29 The difference between Halinski's printing on the discharge slips and the testimony he
gave as to his reasons for the discharge as a witness indicates why the Trial Examiner has
been unable to put much faith in the testimony of Halinski.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees by stating that he could not take an election every year because it took
too much out of him. But Halinski's testimony makes it clear that these enumerated
duties were not intended to be exclusive as Halinski was careful to generalize such
duties because he preferred to determine the limits of the EWC authority and
jurisdiction on an ad hoc basis as matters came up for fear EWC would, as Halinkki
put it, suddenly get up a "full head of steam" and Halinski would find himself "out
in the outfield." Halinski did not intend that EWC should ever get out from under-
neath his thumb.
However, the admitted facts prove that EWC was permitted by Halinski to confer
and deal with him on the following matters:
(1) The demand of employee Ravencroft for more wages, an increase in pay which
Halinski granted; (2) the request of employee Clarence Easley for a transfer to the
day shift because of personality problems with the foreman rather than being dis-
charged from the second shift, a change in hours and working conditions and tenure
of employment which Halinski denied; and (3) the demand of employee Paul Hinds
for a promotion, a wage increase and change in working conditions which Halinski
granted.
In addition, of course, Halinski had in effect at the formation meeting given EWC
power over the tenure of employment of the 4 named prounion employees as well as
over the "11" who had voted for the Union in the election. It became well-known
throughout the plant that "the 11 had to go" and that the EWC committeemen had
been instructed to run them off the job
Thus EWC was dealing with management on matters of hours, wages, and condi-
tions of employment as well as matters pertaining to the hire and tenure of employ-
ment. There is no requirement in the Act that such a labor organization should have
power and authority to make "final decisions" in these regards in order to qualify
as a labor organization. In fact any such authority would amount practically to the
very antithesis of collective bargaining.
Therefore EWC qualifies fully as a labor organization under the Act.30 The
Trial Examiner so finds.
Respondent's brief does not even argue the question of whether Respondent engaged
in acts "to dominate and interfere with the formation and administration" of EWC
or to contribute "financial and other support to it" in violation of Section 8(a) (2)
of the Act. The futility of such argument is obvious. The facts prove without
contradiction that Respondent through Halinski consented to its formation, if indeed
he did not suggest it, defined its duties, provided its name, instructed it through its
committeeman to act against the "11" and specifically against the 4 prounion em-
ployees he named, paid its committeemen for the time spent in such activities, pro-
vided facilities for those meetings and permitted EWC to solicit checkoff authorization
from the employees on company time and property during working hours, and there-
after took charge of the moneys so checked off. It is impossible to imagine any more
completely company-dominated organization than EWC.
Accordingly, the Trial Examiner must, and hereby does, find that Respondent
violated Section 8(a)(2) of the Act by dominating and interfering with the forma-
tion and administration and providing financial and other support to the labor organi-
zation known as the Employees Welfare Committee.
2. The resignations
Because of the instructions and the authority granted by Halinski to EWC 31 that
Webb, Nunnery, McDaniel, and Osborne were "undesirable employees" and should
be told to seek employment elsewhere," these four cases can best be considered as a
group.
It is true, as Respondent's defense states, that Webb, Nunnery, and McDaniel
actually told Halinski that each was "resigning." Because Osborne refused to re-
sign under pressure, Halinski had to discharge him. With Osborne, Respondent
defends on the ground that he became a poor workman after the election and was
creating "friction, dissension and disturbances" among the employees by reason of
the fact, in large measure, as disclosed by practically each of Respondent's witnesses,
that Osborne chose, after the election, to eat lunch outside the plant instead with
the rest of the employees in the cafeteria.32
3o N L R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203.
31 Iany event Respondent 'by these instructions constituted IOWC and its committeemen
as Respondent's agents
Although practically each of Respondent's witnesses gave this last as the manner in
which Osborne allegedly created this so-called friction, even Halinski testified that this
charge "borders on being ridiculous ." The Trial Examiner is forced to agree with this
observation.
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 657
It is also true that, with the exception of Webb, each of the above-named em-
ployees made no bones about his personal disappointment at the result of the union
election and disagreement at the way the majority had voted. The evidence proved
that there were snide remarks from members of the majority as well. In every elec-
tion, the vanquished gripe and the victors gloat. Which is the more distasteful is
an open question. Either can provoke hard feelings.
However, to Halinski, this was no open question. In fact, at the formation meet-
ing of EWC he informed the committeemen that "friction, dissension and disturb-
ances" were being created throughout the plant by the suspected or known prounion
adherents: Webb, Nunnery, McDaniel, and Osborne; that, if these men had straight-
ened up as he had requested each to do instead of remaining "steamed up" about the
election and for the Union, they could have remained as employees with the Re-
spondent as long as they had wanted but, as they had not complied, the committee-
men were,to inform each of them that they were "undesirable employees, who should
seek work elsewhere" and that "the 11 [an obvious reference to the 11 employees who
had voted for the Union] had to go."
In this conference Halmski cited the Nunnery-Phelps incident in the cafeteria as
an example of why Nunnery-but not the antiunion Phelps-had become undesir-
able. Until this time Halinski had considered Nunnery as a man "who would go far
with the Company" and a worthy substitute for a vacationing foreman. Admittedly
the Nunnery-Phelps episode was a prounion-antiunion quarrel which was witnessed
by Foreman Lee who disciplined neither employee. Halinski's only knowledge of
the episode stemmed from a report he purportedly received from Lee. But, as a
witness, Lee testified, even though he came into the cafeteria with Nunnery, that he
heard none of the conversation between the two preceding the episode. Thus, if true,
Lee could not have known or informed Halinski which man provoked the incident
or which man created the "friction." Although the antiunion Phelps had been a
participant in other so-called "friction" cases at the plant, which might have given
rise to the idea that Phelps himself might have been provocative, Halmski with his
insight was able to select the union observer Nunnery as the creator of the trouble.
However, Halinski himself removed whatever doubt might have existed as to how
he was able to select Nunnery so easily when he told the committeemen at the same
meeting that he himself could not stand the strain of another annual union election
and that "the 11 had to go." His philosophy obviously was that, if there were no
union men employed, there would be no union election next year.
Webb's case is superficially complicated by the fact that, as Respondent now con-
tends, that Webb admittedly was not the best Bobst machine operator in the world
and, indeed, was unhappy enough on that job to be seeking other work both with
Respondent and elsewhere.
But the fact remains that, until Halinski came to the mistaken conclusion that
Webb was one of the "11" at or about the time of the formation meeting, there is
not one iota of evidence in this record that Respondent had any intention or desire
of dispensing with Webb's services because of any dissatisfaction with his work or
for any other reason. In fact, the evidence shows that Respondent apparently
wanted Webb operating the Bobst machine for Halinski refused his request for both
office work and a truckdriver's job. Webb was, after all, the only employee of Re-
spondent who had any training on this new machine.33
Acting promptly in accordance with the instructions of Halinski, Committeeman
Gary Dunaway visited Webb telling him that, as Webb was one of the men "that
had supposedly voted for the Union," it was up to Dunaway "as a committeeman
to get rid of" Webb "or he [Halinski] will." Webb immediately sought out Halinski,
objected to his using committeemen to do his discharging for him, and inquired
about his status with Respondent while denying that he had participated in any union
activities. After expressing his disbelief of this last statement, Halinski refused to
discharge Webb and ordered him back to work with the ominous comment that "I
have got some men that are going to run you off." Refusing to work under such
conditions, Webb resigned.
Considered in vacuo Webb's case does not appear too strong because of his diffi-
culties on the Bobst machine. However, considered in connection with the other
"resignations," it becomes clear that Webb's case is merely the first in setting apattern.
Later, on August 13, when Nunnery "resigned," Nunnery again informed Halinski
that Webb had not been active in the union movement. Halinski admitted that he
"might have made a mistake but he did not think so."
I Committeeman Lynn Brown was promoted to Webb's job after Webb' s departure on
August 7.
734-070-64-val. 14 5- 4 3
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kit Nunnery was the man whom Halinski had described as one "who would have
gone far with our company" until he surprised Halinski by appearing at the election
as the union observer. As proof of the fact that this was the first knowledge Halrnski
had of Nunnery's prounion sentiments , Halinski cited the fact that he had promoted
Nunnery to replace Foreman Lee while on vacation only a few weeks before the
election. The implications of this comment by Halinski are obvious. Despite the
above, within a week or so of that election Halinski was citing Nunnery as 1 of those
11 creating friction, etc., "who had to go."
Nunnery's case is slightly different than Webb's. Nunnery was either more sensi-
tive or independent. No EWC committeemen had to pay him a visit. Nunnery
began to see the handwriting on the wall from the Webb case, from Foreman Lee's
transferring him to manual work when there were orders to be run on the press
Nunnery operated, from Lee's sudden criticism of Nunnery's work coupled with the
suggestion that Nunnery should check out if he could not do better when, as a
matter of fact, Nunnery had been following customary practice, and from Halinski's
discussion with Nunnery and McDaniel about what promises the "damn" union
organizer had made to them The straw that broke the camel's back came when
Halinski reneged on his promise to Nunnery that Nunnery could take his vacation
beginning August 13, as Nunnery had arranged long before. The excuse given by
Foreman Lee for canceling that vacation was that Nunnery was needed to train new
employees. Actually the training did not start for a couple of weeks after August 13.
Recognizing the obvious symptoms, Nunnery took it upon himself and "resigned."
Halrnski was sorry that "the situation" required Nunnery's resignation.
Immediately following the election Halrnski promised McDaniel, as well as
Nunnery, job security so long as Halinski operated the plant. Despite this Re-
spondent's own exhibit shows that Foreman Lee began transferring McDaniel, who
up to this time had been regularly working as a helper or operator on a press, to
manual work in the plant on or about the day of Nunnery's resignation, August 13
However, McDaniel continued thereafter to try to talk his way back onto a press
until Lee "promised" him the next opening. But the handwriting on the wall became
clear to McDaniel when Halinski notified McDaniel that his transfer to manual work
had reduced his pay by 5-cent per hour and, if McDaniel did not like, McDaniel
could punch out. McDaniel took it until Committeeman Lynn Brown 34 put it to
McDaniel in words- ". . . you' re going to have to go . I got my information
from the big man." McDaniel thereupon accepted the ultimatum and resigned for
fear of being discharged and possibly blackballed from employment in the area.
When McDaniel finally did resign, Halinski explained these cases very clearly
when he said, "Well Ivey, you know that when you play a game there is a winner
and a loser and . you went the wrong way and . . . you are automatically the
loser . . . we're giving you your choice . you can quit or we'll fire you sooner
or later . . . your partner, Kit Nunnery, has already gone . you and Dewey are
going to have to go . . you know that you and Kit were leaders in that thing .
that's the main reason you all got to go because . I'm not going to put up with
it another year because it takes a lot out of me " Halinski could hardly have been
more explicit
A resignation is the voluntary act of an employee. There was nothing voluntary
about the resignation of Webb, Nunnery, or McDaniel. Halinski and his foreman
in each of these cases made conditions such that each employee could not help but
recognize the choice presented to him: he could resign before the conditions became
unbearable or he would be discharged. In the event the employee did not recognize
the signs quickly enough, EWC committeemen always were there to put the choice
into words. Nunnery was the only employee who did not require the explicit state-
ment of the facts from a committeeman
Dewey Osborne, like Nunnery and McDaniel, was known, to be a supporter of
the Union. According to Halinski, Osborne was one of the "11." Prior to the elec-
tion Osborne had been promised job security by Halinski
Like every other press operator Osborne had spoiled some boxes, a relatively
large number in fact. Some spoilage is inevitable Before the election he did not
even receive a reprimand on an occasion of spoiling some 500 boxes. After the
election, however, Osborne spoiled approximately 50 to 75 boxes out of an order of
1,000 and promptly received a written reprimand On a subsequent occasion Lee
reprimanded him because of one spoiled box.
Osborne received the usual visit from EWC Committeeman Lynn Brown Soon
thereafter, Lee ordered Osborne to instruct employee Givens on how to operate Os-
borne's press.
34 Then working on the Bobst machine in lien of Webb
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 659
But when Osborne remained stubborn and refused to resign under this pressure,
Halinski visited him in person and inquired whether Osborne had any other job
prospects because, as Halinski put it, Osborne could no longer remain with Re-
spondent. Osborne asked Halinski to lay him off Halinski refused. Osborne
suggested that Halinski fire him. Halinski refused on the ground that he did not
think Osborne "was going to be here very much longer." Two hours thereafter
Foreman Lee reported to Osborne that he had heard that Osborne was "quitting that
night."
The next morning Osborne's timecard was missing from the rack. Still Osborne
refused to give in to pressure. Finally when Osborne specifically refused to resign
or quit as Halinski desired, Halinski told him that he was discharged
On the other hand Halinski attributed Osborne's discharge mainly to the fact that
he, Halinski, was receiving reports that Osborne had been creating friction, dissen-
sion, etc., among the employees. Admittedly, Osborne told some of the employees
after the election that he hoped that they would not regret their votes against the
Union. But it is also undenied that some of the employees were gloating to Osborne
over the results of the election and making snide references to the fact that Osborne
was one of the 11 who had to go. However, provocation from antiunion sources ap-
parently created no friction in Halinski's estimation. Nor did EWC create friction
in carrying out Halinski's own instructions.
Halinski's testimony indicated also that Osborne's workmanship had fallen off
after the election pointing to a warning slip given Osborne by Lee on August 23, 1962.
"for letting bad boxes pass through press without close enough observance" as proof
thereof. In this instance Osborne had 50 to 75 bad boxes from an order of 1,000.
However, it was Respondent's regular practice to provide an override of 10 percent
on each order in order to take care of ordinary spoilage. In addition Respondent's
contracts with purchasers all provided for a 20-percent differential: 10-percent
overage or 10-percent deficiency in the number of boxes furnished. Respondent obvi-
ously recognized that some spoilage was inevitable
Furthermore the facts prove that, while Osborne was still a good operator before
the election, he had his instance of largest spoilage, some 500 boxes. As this was
still within the 10-percent limit, Foreman Lee only asked Osborne on this occasion
to be a little bit more careful. After the election, however, the spoilage of 50 to 75
boxes promptly brought Osborne his only written reprimand from Foreman Lee-as
though Respondent was building a case of poor workmanship against Osborne The
largest spoilage referred to in this record, some 5,000 boxes and over the 10-percent
limit, resulted in only a verbal reprimand to the operator, Osborne's replacement, be-
cause, according to Halinski, this operator was a "very conscientious" employee
In addition Halinski testified that he had checked Osborne's time and production
reports and allegedly found that Osborne's production had fallen off after the elec-
tion. However, Halinski also had to admit that it was impossible to tell from the
production sheets whether low production was the fault of the operator, his helper,
or the machine. It was noteworthy that Respondent made no effort to corroborate
Halmski's generalization with any record at all. Thus this claim of poor workman-
ship was unproved.
Respondent also claimed that Osborne had violated Respondent's published "no
solicitation" rule by talking to employees about the Union in the plant and in town.
Halinski interpreted the rule to be applicable at all times on company property
This was a reasonable interpretation of the published rule but. as that interpretation
necessarily included nonworking time, it makes the rule illegal and a violation of
Section 8(a)(1) of the Act.35 Respondent also discriminatorily enforced that rule
in that. contrary to the treatment accorded Osborne, Halinski not only suggested but
permitted the EWC committee to solicit signatures of employees to the EWC check-
off authorization petition during working hours on company property.
At the hearing Respondent referred to the fact that, when Committeeman Brown
approached Osborne in accordance with Halinski's instructions, Osborne admittedly
told Brown that the committee was a "bunch of damn fools" to carry out Halinski's
instructions as an instance of the friction created by Osborne Obviously Respondent
chose to refuse to recognize the fact that the committeemen were themselves creating
friction by carrying out Halinski' s instructions against the prounion employees.
Respondent's claims in regard to Osborne were so obviously contrived and falla-
cious as to only strengthen the contention that Respondent discharged Osborne be-
cause of his prounion attitude and activities.
15 Republic Aviation Corporation v N L R B , 324 U S 793 Although the complaint
does ont allege this no-solicitation rule to be Illegal, Respondent chose to introduce the
same into the hearing Hence the Trial Examiner feels justified in making the above
findings
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's discharge of Osborne, following his refusal to accede to pressure and
resign, completes the Respondent's pattern of action in regard to all four of the
employees named by Halinski at the EWC formation meeting in his office and
proves that, if any of the four prounion employees had failed to resign under that
pressure put on them through the foreman and EWC, then Respondent intended to
discharge them as a last resort. Thus, Respondent conclusively proved that it was
not going to permit any of these known prounion employees to remain employees
because of their known prounion attitude.
Accordingly, the Trial Examiner must, and hereby does, find that Respondent
discharged, constructively or actually, Thomas H. Webb, C. M. Nunnery, Ivey
McDaniel, Jr., and Dewey Osborne because of their known union membership,
sympathy, and activities on behalf of the Union in violation of Section 8(a)(3)
and (I) of the Act.
3. The discharges of Wells and McElveen
Based in large measure upon the testimony Halinski gave at the hearing, Re-
spondent's brief contends that Wells and McElveen were fired by Respondent on
October 23 for the following nine reasons: (1) creation of dissension; (2) abusive
language to employees; (3) promoting a "walkout"; (4) derogatory remarks against
Halinski, (5) false accusations against Halinski; (6) obscene and vulgar language
causing friction, etc.; (7) poor work performance; (8) one previous warning slip
given to Wells; and (9) Respondent's right to operate its plant efficiently.
It can readily be seen that items 1, 2, 4, 5, and 6 on this list are one and the same
thing: remarks made by Wells and McElveen at the October 19 mass meeting or un-
substantiated "reports" allegedly made by foremen or persons unknown to Halinski.
These remarks were made either during the argument for higher wages or else were
made to employees in the plant regarding their immediate renunciation of the mass
demand, all relating to a protected concerted activity.
In his testimony Halinski specifically exempted McElveen from the charge con-
tained in item 7 at the time of the joint discharges despite the fact that Wells and
McElveen had been working together on the days of the alleged poor production.
How Halinski was able to determine that one of the two did his full share and that
the other did not makes this whole charge highly questionable especially as the joint
work record of Wells and McElveen was reported as a single item on their joint
work report sheet.
As to item 8 it is true that on September 6, 1962, Foreman Floyd Smith gave
Wells a written reprimand which Wells refused to accept on the ground that the
reprimand was unjustified. With the validity of this reprimand thus brought into
question, it is noteworthy that Respondent never produced Foreman Smith as a
witness to attempt to justify the warning. Thus this slip appears to have been
another example of Respondent's building of a case against Wells, as occurred to
Osborne, especially as Wells received this slip soon after he confessed to IHalinski
that he, Wells, had been one of the "11 " Thus the slip looks exactly like the first
step in Respondent's pattern for ridding itself of one of the "11 "
During his testimony at the bearing Halinski, specifically and categorically, denied
the fact that item 3, "inciting a mass walkout," played any part in the discharges
In this regard Halinski as a witness rationalized as follows:
A. . . . As they had the meeting as a group, I respected that, certainly had
no animosity toward anyone of them. As far as I was concerned it was their
opinion The thing was talked about, discussed and it was over, and that was
it for me.
Q. Now, insofar as the Friday meeting itself, were Wells and [McElveen]
discharged because of the Friday meeting or what happened later''
A. No, sir. They were definitely not. I certainly would not say that the
thing was over as far as I am concerned and then go around and fire somebody,
because if I did that would be pretty silly on my part. I would probably get
the people to walk out, and I wouldn't have done it, and I didn't do it.
In contradiction of this oral testimony, the sockdolager, however, was also sup-
plied by Halinski when at the very time of the discharges on October 23, he per-
sonally printed under the cause of discharge on their discharge slips- "Inciting a
mass walkout."
The facts substantiate Halinski's printed words and disprove Halinski's oral
testimony
Discharging Wells and McElveen for having engaged in a protected, concerted
activity such as a mass meeting demand for a pay increase is clearly a violation of
Section 8(a)(1) of the Act.
HANKINS CONTAINER CO., DIV. OF THE FLINTKOTE CO. 661
Further the facts prove that Halinski knew from Wells' own mouth that Wells
had voted for the Union, and therefore, was one of the "11" who had to go. At the
time of this confession Halinski assured Wells that his job tenure was secure, just
as in similar circumstances Halinski had given assurances of job security to Nunnery,
McDaniel, and Osborne only a few days before discharging them.
The activity of Committeeman-Agents Dunaway and Brown in instigating the
mass meeting for the pay increase and then scuttling the group spokesman immedi-
ately upon Halinski's appearance indicate that Wells was entrapped by Respondent
and its agents into publicly displaying his continued desire for group or union action
and was discharged for so doing in violation of Section 8(a) (3) of the Act. Halinski
confirmed this last finding by reinstating McElveen, who could not have been one of
the "11" because he was not employed by Respondent until after the election in
January 1963 because Halinski, in his own words, "felt Ely probably was a victim
of circumstances. I still feel that way. If I didn't, he wouldn't be back." The
known union adherent was not reinstated. Wells admittedly was a member of the
prounion 11 who had to go.
Respondent, after correctly citing the law applicable here:
The freedom of management in selecting from its employees those whose
employment is to be terminated is limited only by the prohibition of Section
8(a)(3) of the Act, that there shall be no discrimination by reason of union
affiliation or activity. N.L.R.B. v. McGahey, supra .36
and:
The existence of some justifiable ground for discharge is no defense if it was
not the moving cause 37
appears to argue that having proved [as Respondent contends] that it had good
cause [allegedly nine such "good causes" in the case of employee Wells] to discharge,
therefore, committed no violation of Section 8(a)(3) of the Act by discharging any
of the six discriminatees here.
There are three basic fallacies in this argument:
(1) Respondent was motivated in discharging each of these 6 employees involved
here by its desire to eliminate all prounion employees, i.e., Halmski's instructions
that the "11" had to go.
(2) Contrary to its claim, Respondent failed to prove any good cause for the
discharge of any of the six.
(3) Even assuming good cause to have existed, the evidence is clear beyond the
peradventure of a doubt that Respondent would not have discharged any of the
employees involved here but for their known or suspected prounion affiliation and
sympathies. The Trial Examiner so finds.
Respondent also argues as proof of its alleged nondiscriminatory attitude, the
fact that the figures prove that there must still be five prounion employees still
working for Respondent. This theory has been exploded so frequently as to require
no citation of authority. It might even be, as also suggested at the hearing, that
nobody knew the others who cast prounion votes in that secret ballot election
Accordingly, the Trial Examiner is convinced, and therefore finds, that Respond-
ent discharged Dan Wells and Ely McElveen on October 23, 1962, because they
engaged in protected, concerted activities and because of their known or suspected
sympathy and activities on behalf of the Union in violation of Section 8 (a) (1) and
(3) of the Act.
4. Interference, restraint, and coercion
There seems little reason to further overextend this Intermediate Report with
much beyond an enumeration of the many instances of interference, restraint, and
coercion shown by this record. These in the main were:
(1) The existence of an illegal no-solicitation clause together with its discrim-
inatory enforcement.
(2) The numerous coercive interrogations of employees by Halinski, Cook, Lee,
Prescott, and Terry regarding the individual employee's membership in and feelings
regarding the Union.
(3) Halinski's many promises of "job security" upon the implied condition that
the employee abandon the Union.
(4) Foreman Lee's announcement that Respondent could not promote an em-
ployee favorable to the Union to a better position.
' N.L.R B. v. The Newton Company, 236 F. 2d 438 (C A. 5).
87 Wells, Incorporated v. N.L.R.B., 162 F. 2d 457 (C.A. 9).
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) The statements by Halinski, Prescott, and Lee that transfers to less desirable
jobs were caused by reason of the employee's union sympathy and activity together
with the actual demotions.
(6) The spread of the threat by Halinski that the "11" prounion voters had to go
The Trial Examiner finds all of the above to constitute violations of Section
8(a)(1) of the Act.
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 of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent dominated and interfered with the formation
and administration and contributed financial and other support to Employees Welfare
Committee and has dealt with said EWC as the representative of its employees, the
Trial Examiner will recommend that Respondent withdraw and withhold recognition
from Employees Welfare Committee as the representative of any of Respondent's
employees .and that it completely disestablish said Employees Welfare Committee.
It has also been found that Respondent has exacted moneys from its employees
under a purported checkoff arrangement with Employees Welfare Committee, the
Trial Examiner will recommend that Respondent refund to each of said employees
the amount of money so exacted from each with interest thereon at 6 percent per
annum.
It having further been found that Respondent discriminated in regard to the hire
and tenure of employment of Thomas H. Webb, C. M. Nunnery, Ivey McDaniel, Jr.,
Dewey Osborne , Daniel Wells , and Ely McElveen by discharging each, either actually
or constructively , because of their known or suspected membership , sympathy, and
activities on behalf of the Union , the Trial Examiner will recommend that Respond-
ent offer each (except McElveen ) immediate reinstatement to his former or substan-
tially equivalent employment and make each of them ( including McElveen) whole
for any loss of pay he may have suffered by reason of said discrimination against
him, including the 5 cents per hour discriminatorily taken from Ivey McDaniel, Jr.,
for his last few days of employment , by payment to each of a sum of money equal
to that which he would have earned as wages from the date of the discrimination
against him to the date of his reinstatement , less his net earnings during such
period, in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289 , and with interest thereon at the rate of 6 percent per annum computed
in the manner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716.
Because of the variety and extent of the unfair labor practices engaged in by
Respondent , the Trial Examiner senses an attitude of opposition to the purposes of the
Act in general and, hence , deems it necessary to order that Respondent cease and
desist from in any manner infringing upon the rights guaranteed the employees in
Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
(1) Southern States Regional Council, Region 5, International Woodworkers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
(2) Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
(3) By dominating and interfering with the formation and administration of
Employees Welfare Committee and contributing financial and other support to it
and by dealing with said organization as the representative of some of its employees,
Respondent has engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) of the Act.
(4) By discharging, actually or constructively, Thomas H. Webb, C M. Nunnery,
Ivey McDaniel, Jr., Dewey Osborne, Daniel Wells, and Ely McElveen, thereby
discriminating in regard to their hire and tenure of employment and discouraging
CARPENTERS' DISTRICT COUNCIL OF DETROIT, ETC. 663
concerted and union activities among its employees , Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
(5) By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed them in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
(6) The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
Carpenters ' District Council of Detroit , Wayne and Oakland
Counties and Vicinity, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, and L. M. Weir, Harold Veach
and Marvin Grisham and Excello Dry Wall Co. Cate No. 7-CB-
917. December 26, 1963
DECISION AND ORDER
On October 1, 1962, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in unfair labor practices and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the attached Intermediate Report. Thereafter, the General Coun-
sel filed exceptions to the Intermediate Report and a supporting brief;
Respondents filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case, and finds merit in the exceptions. Accordingly, the Board
adopts the findings of the Trial Examiner, but not his conclusions or
recommendations.
The Trial Examiner concluded that it was not a violation of Section
8(b) (3) for Respondents to insist, as a condition to entering into a
collective-bargaining agreement with the Charging Party, Excello
Dry Wall Co., that the latter establish a fund of $2,500 to be deposited
in a trust or "escrow",account, 'as security for the payment of wages
to employees of Excello and of contributions to benefit funds on their
behalf. We do not agree.
Since 1940, the Board has consistently and repeatedly held, without
qualification and with court approval, that it is an unfair labor prac-
tice for either an employer or a union to insist that the other party post
a performance bond or its equivalent as a condition precedent to enter-
145 NLRB No. 64.