Ward Body Works, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1953

103 N.L.R.B. 680 (N.L.R.B. 1953)

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WARD BODY WORKS, INC. and INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT, AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
CIO. Case No. 32-CA-188. March 16, 1953
Decision and Order
On November 14, 1952, Trial Examiner Lloyd Buchanan 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 copy of the
Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent and the General Counsel filed ex-
ceptions to the Intermediate Report, and supporting briefs.
The Board' has reviewed the rulings of the Trial Examiner and
finds that no prejudical error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in this case,2 and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following exceptions, additions, and modifications :
1. We agree with the Trial Examiner's finding that the April 1951
mass layoffs were not discriminatory. We disagree, however, with
his finding that the employees' impressions as to the reasons for their
layoffs are material in determining whether such layoffs were dis-
criminatory, and accordingly do not adopt this finding.
2. We agree with the Trial Examiner's finding that the Respondent's
failure to reemploy William L. Bradshaw on September 10, 1951,
and to recall him thereafter, was discriminatory. Bradshaw was an
active union adherent, and in June 1951 Respondent President Ward
had charged Bradshaw with "tooting his horn too much about the
Union." Ward had agreed to reemploy Bradshaw if the latter ob-
tained certain medical releases, and for the reasons stated by the Trial
Examiner, this condition had been complied with when Bradshaw
sought reemployment on September 10. Under such circumstances,
we find, as the Trial Examiner did, that the reason for Ward' s failure
to reemploy Bradshaw on that date, and to recall him thereafter, was
Bradshaw's known union activity.
2 The request by the Respondent for oral argument is denied, because the record, excep-
amended, the Board has delegated its powers in connection with this case to a three -member
panel [Members Houston , Murdock , and Styles].
2 The request by the Respondent for oral argument is denied , because the record, excep-
tions, and briefs, in our opinion , adequately present the issues and the positions of the
parties.
103 NLRB No. 48.
WARD BODY WORKS, INC. 681
3. We agree with the Trial Examiner's finding that the Respondent's
,discharge of Leo W. Stewart on December 14, 1951, was discrimina-
tory. As found by the Trial Examiner, Stewart was not discharged
for the reasons alleged by the Respondent that he had been absent
and had done faulty work, and the conclusion is therefore warranted
that he was discharged for his known union activity.
4. We agree with the Trial Examiner's finding that the Re-
spondent's failure to recall Roy L. Stevenson after his layoff on April
2, 1952, when Don Cardin and Ed Cardin, or either of them, were re-
called, was discriminatory. Stevenson was a member of the Union,
had worn a union button, and had spoken to other employees both
in the plant and outside about the Union. Don Cardin and Ed Cradin,
who did the same type of work as Stevenson, were recalled after the
April 2, 1952, layoff whereas Stevenson was not. Both Cardins had
less seniority than Stevenson, and there is no evidence that their
work had been better than Stevenson's work. The recall of the
Cardins, therefore, was not in keeping with the Respondent's es-
tablished policy of following departmental seniority in layoffs and
recalls where employees are equal in ability. And, as pointed out by
the Trial Examiner, the claimed greater potential versatility of the
'Cardins, which was the alleged reason for recalling the Cardins, is
not a factor in this established policy. In view of the Respondent's
departure from its established recall policy in not recalling Steven-
son instead of the Cardins, we find that the failure to recall Stevenson
was motivated by the latter's union activity.
5. We disagree, however, with the Trial Examiner's finding that
the Respondent's layoff of Lea Roy Gill from September 11 to 20,
1951, was not discriminatory. The Respondent admittedly laid off
Gill for talking too much about the Union during working time, and
thereby neglecting his work. However, the Trial Examiner found,
and we agree, that 2 weeks after Gill's layoff, the Respondent per-
mitted and condoned the distribution in the plant during working
hours of an antiunion petition, which was signed by 159 employees
and supervisors. Considering the time required to read the petition 3
and the number of signatures obtained, there must have been consider-
able neglect of work as a result of this petition' While an employer
has the right to prevent interference with the work of his employees
by prohibiting union activity on company time, he may not do so dis-
criminatorily as between employees who engage in prounion activity
and employees who engage in antiunion activity. We find, therefore,
that the Respondent's layoff of Gill from September 11 to 20, 1951, for
2 The petition contains 18 typewritten lines.
* The Respondent produced no evidence as to the extent to which Gill had neglected his
work as a result of his prounion talk during working time.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in prounion talk during working time while at the same
time permitting and condoning the distribution in the plant during
working time of the antiunion petition, was a violation of Section 8
(a) (3) of the Act.5
6. We agree with the Trial Examiner's findings that the following
conduct of the Respondent was violative of Section 8 (a) (1) of the
Act: 6 (a) Emil Thornton's distribution of a petition to the em-
ployees for signature, which purported to deny a newspaper report
that the employees had been denied the right to vote as they wanted
to in the May 1951 election; (b) sponsoring and permitting the dis-
tribution, by employees Montgomery and Carter, of an antiunion pe-
tition in the plant during working time; (c) President Ward's warn-
ing to Bradshaw not to talk about the Union while he did his work; z
(d) Ward's threat to employee Moore that if the employees continued
their union activity, Ward would replace them with machines;
(e) Mrs. Ward's statement to the telephone operator in the plant that
she believed her husband would shut down the plant if it were or-
ganized; (f) Ward's admonition to employee Leroy Hazel not to
attend union meetings, and Ward's request of Hazel to talk to the
employees and try to influence them against the Union; (g) Thorn-
ton's statement to employee Padgett that they would work about half
the time if they had the Union; (h) Leroy Thomas' statement to em-
ployee Callihan that if the Union came in, employees would have to
take a physical test and a job test, and Thomas' statement to Callihan
that if even two employees were against the Union, "it would never
go in," thereby suggesting that it was pointless to support the Union;
and (i) Foreman White's interrogation of employee Edward Ward
as to whether the employees intended to have an election and as to
the report that every employee had signed up.
Order
Upon the entire record in the case , and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Ward Body Works, Inc.,
Conway, Arkansas, its officers, agents , successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft; Agricultural Implement Workers of America,
6 Reliance Manufacturing Co., 56 NLRB 1083. See also Crosby Chemicals, Inc., 85
NLRB 791 ; Citizen-News Co., Inc., 88 NLRB 1413.
Ewe do not adopt such other findings of violation of Section 8 (a) (1) as were made by
the Trial Examiner.
7 Like Gill's layoff, this warning was a discriminatory application of a no-solicitation
rule, in view of the antiunion petition which the Respondent sponsored and permitted to be
distributed during working time.
WARD BODY WORKS, INC. 683
CIO, by discharging, laying off, refusing to reinstate, or failing to
recall any of its employees, or discriminating in any other manner in
respect to their hire or tenure of employment, or any term or condi-
tion of employment.
(b) Interrogating, coercing, or threatening its employees in con-
nection with union activities, or sponsoring or permitting circulation
of petitions concerning such activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to form
labor organizations, to join or assist International Union, United
Automobile, Aircraft, Agricultural Implement Workers of America,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to William L. Bradshaw, Leo W. Stewart, and Roy L.
Stevenson, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without projudice to their seniority or
other rights and privileges, in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Make the above-named employees and Lea Roy Gill whole for
any loss of pay they may have suffered by reason of the interference,
restraint, coercion, and discrimination against them, in the manner set
forth in the section of the Intermediate Report entitled "The
Remedy." 8
(c) Post at its plant in Conway, Arkansas, copies of the notice
attached hereto and marked "Appendix." 9 Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
S Having found that Lea Roy Gill was discriminatorily laid off from September 11 to 20,
1951 , we order that he shall be made whole for this period.
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 "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges violations of the Act not herein found.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT, AORIcULTURAL IMPLE-
MENT WORKERS OF AMERICA, CIO, or in any other labor organi-
zation of our employees by discharging, laying off, refusing to
reinstate, or failing to recall any of our employees or discrimi-
nating in any other manner in respect to their hire or tenure
of employment, or any term or condition of employment.
WE WILL NOT interrogate, coerce, or threaten our employees in
connection with union activities, or sponsor or permit circulation
of petitions concerning such activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist INTERNA-
TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, CIO, or any other labor or-
ganization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to William L. Bradshaw, Leo W. Stewart, and
Roy L. Stevenson immediate and full reinstatement to their for-
mer or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them
and Lea Roy Gill whole for any loss of pay suffered as a result
of the interference, restraint, coercion, and discrimination against
them.
All of our employees are free to become, remain, or to refrain from
becoming or remaining members Of INTERNATIONAL UNION, UNITED
WARD BODY WORKS, INC. 685
AUTOMOBILE, AIRCRAFT, AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO, or any other labor organization except to the extent
that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act.
WARD BODY WORKS, INC.,
Employer.
Dated -------------------- By-------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
The complaint herein, as amended at the hearing, alleges that the Respondent
has violated Section 8 (a) (3) of the National Labor Relations Act, as amended,
61 Stat. 136, by laying off in April 1951 the 61 employees listed in Appendix A
attached thereto, and delaying their recall, by failing to recall the 81 employees
listed in Appendix B attached hereto, who were laid off on April 2, 1952, by
discharging at various times and refusing to reinstate the 13 employees listed
in Appendix C attached hereto, and by refusing to hire Charles C. Hartzell on
November 5, 1951; and Section 8 (a) (1) by said alleged acts and by interrogat-
ing employees concerning union affiliations, attempting to persuade employees
that they cease union activities and that they discourage other employees from
such activities, promising benefits to discourage and making threats on account
of union activities, implying surveillance of union activities, sponsoring or per-
mitting circulation of petitions which restrained union activities, and by making
statements and engaging in conversations which otherwise interfered with such
activities; all in violation of Section 2 (6) and (7) of the Act. The answer
denies the allegations of unfair labor practice and alleges that various layoffs
and discharges and disciplinary action were taken for valid reasons.'
A hearing was held before me at Conway, Arkansas, on June 9 and from
June 24 to July 2, 1952, inclusive. Pursuant to leave granted to all parties,
briefs were thereafter filed by General Counsel and the Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE RESPONDENTS BUSINESS ANU THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Respondent, an Arkansas corporation
with its principal place of business in Conway, Arkansas, is engaged in the
manufacture of metal buses ; that in the year ending December 31, 1951, it
purchased raw materials valued at more than $200,000, approximately 95 percent
of which was purchased outside the State of Arkansas and shipped in inter-
state commerce to the Respondent's Conway, Arkansas, plant ; and that during
' The allegation with respect to three of these was dismissed on motion of General
Counsel.
'In its brief the Respondent argues that Section 10 (b) of the Act bars a finding of
discrimination against four employees named for the first time in the amended charge.
The point is met by the doctrine established in Cathcy Lumber Company, 86 NLRB 157,
and subsequent cases.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same period it manufactured and sold metal buses valued at more than
$300,000, approximately 85 percent of which was sold and shipped to customers
outside the State of Arkansas. I find that the Respondent is engaged in com-
merce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization and admits
to membership employees of the Respondent.
II. THE UNFAIR LABOR PRACTICES
References hereinafter made to the evidence, not ascribed to named witnesses,
represent uncontradicted testimony, or findings where conflicts have been re-
solved ; findings are made herein on the basis of reliable, probative, and sub-
stantial evidence on the record considered as a whole and the preponderance of
the testimony taken, and evidence in conflict with the findings which is not
discussed has not been credited. As will be indicated, I have accepted as
credible the testimony of some witnesses in part only; rejecting portions, I have
felt warranted in crediting other portions of given witnesses' testimony.
A. Supervisors
In the main there was agreement concerning the status of various individuals
as supervisors. It is necessary, however, to resolve disputes concerning the
authority of a few.
While the Respondent conceded that Emil Thornton has been a supervisor
within the meaning of the Act since on or about June 1, 1951, it is necessary,
as will be seen infra, to determine whether he was such earlier. In this con-
nection we are concerned of course with his actual authority and his apparent
status as representative of the Respondent, and not merely with his title.
The first testimony on this point, by James C. Coker, is not very helpful. He
testified that Thornton had been his inspector and became his foreman after
Supervisor Sterling E. V. Curtis left. But the witness offered little evidence
of Thornton's duties and authority.
Herman E. Robertson testified that Thornton was an inspector when Jack
Ward was his foreman and became foreman after (date not declared) the latter
was transferred to the machine shop ; Robertson "understood" that on April
26, 1951, when he was laid off, Thornton was his foreman. Sometime after May
10 Thornton told Robertson that he did not know whether he was "over"
Robertson ; but the latter was at the time taking orders from Thornton on job
assignments.
Leo W. Stewart testified similarly that in the winter of 1950 Thornton, as
inspector, had asked him to take over another man's job. It appears from the
testimony of Joseph L. Padgett that, as inspector, Thornton told employees to
redo work which did not suit him. Exercise of such authority indicates that
Thornton, while yet an inspector in the early part of 1951 and before lie became
foreman, was a supervisor. Further evidence of Thornton's status and the fact
that lie represented the Respondent before be became a foreman (he testified
this occurred sometime between June 1 and June 5, 1951) is found in the fact
that he and Newt P. Milam,' traffic manager at the time, called on Willard
Glover about May 8 and asked him to return to work.`
While Curtis indicated animus, and I would not rely on his testimony alone,
some support is found in his description of Thornton's authority and duties.
8 In fact, Milam testified that he "was kind of riding along that night."
4 The Respondent's emphasis on the date of June 1 is suspect : L. D. Oliver, whose super-
visory status at all relevant times was stipulated, testified later that he became a foreman
in June 1951.
WARD BODY WORKS, INC. 687
He declared that Thornton, as chief inspector in April 1951, had authority not
only to tell employees how to do work, but also to direct them to correct the mis-
takes of others ; he corrected defects himself or directed the men to do it, or in
the case of a substantial job lie would report it to Curtis. Curtis further testi-
fied that he sometimes reprimanded employees whose work was reported to him
by Thornton as being unsatisfactory. That Thornton punched a clock does not
indicate rank-and-file status. So did other supervisors ; only salaried men did
not. I find that at all relevant times herein Thornton was a supervisor within
the meaning of the Act.
Floyd E. Berry testified that he was "kind of a leadman in the corner depart-
ment" and has been on the hammer off and on, working "all over the department."
In April 1951 he had 6 or 7 men under him. He had authority to correct a man
in his work and to shift him as work became slack. Clarence Maynard testi-
fied that Berry assigned work to him and told him how to do it; he asked May-
nard to teach Harrest D. Thomas how to operate the drophammer. Later, when
Thomas was caught up on his work and wanted to see whether he could hammer,
Berry told him to go ahead. Berry's reference to himself as a leadman, sug-
gesting the absence of supervisory authority, is hardly reliable. He testified
that he had the same duties and was still a leadman after he was placed on
salary.` I find that at all relevant times herein Berry was a supervisor within
the meaning of the Act.
According to Curtis, Leroy Thomas undertook for about a week in April 1951,
at Ward's direction, to learn the various procedures on the assembly line pre-
paratory to opening another plant in Texas, where he went in May. Harry R.
Callihan similarly referred to a job which Thomas had in Texas and to his going
on the line to learn how buses are built. Callihan testified also that Thomas one
day supervised some welding work, telling the men what and how much to do
and then to move the work. Despite Ward's testimony that Thomas was not
to have any authority until he got to Texas, I find that Thomas' activity in the
plant and his apparent duties "identified (him) with management in such a
way as to cause the employees to look to (him) for guidance regarding the Re-
spondent's policies."' The status of other alleged supervisors is more briefly
considered, infra.
B. The alleged multiple violations of Section 8 (a) (3)
There had been some slight and generally unknown union activity at the plant
at the end of September 1950. William Kimberling, the Union's international
representative, testified that he "next started" trying to organize the employees
during the first part of April 1951. Forty-six employees were laid off on April
26, and 15 on April 30; all were thereafter reinstated or notified to report.
Fifty-nine employees, this figure including supervisors, were not included in these
layoffs.
William C. Ferguson, Jr., assistant to the president and in charge of general
engineering and purchasing, testified that the Respondent had submitted bids
in response to invitations from General Motors and other companies on March
15 to bid on Air Force bus subcontracts. In fact, contracts previously awarded
included certain new specifications, so he had started to work in January or
February with such specifications in mind ; on March 13 he wrote a long letter
to David H. Ward,' the Respondent's president, suggesting changes to increase
While some supervisors are hourly paid, there is no evidence of any other rank-and-file
employee on salary.
6 Harrison Sheet Steel Co., 94 NLRB 81.
7 He alone will hereinafter be referred to as Ward.
Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
efficiency and capacity.' Indication that the Respondent was low bidder was re-
ceived from a third party on March 28. Unofficial word came from General
Motors on April 8; "definite word" was received from a General Motors official
on April 25; and General Motors' formal purchase order was dated June 11,
This was the Respondent's first contract for buses ; it amounted to 11/4 million
dollars.
Ferguson testified further that about April 23 Ward had agreed to shut down
for the changes which Ferguson had proposed regardless of the Air Force con-
tract. On receipt of work concerning the contract on April 25, the line was
slowed down ; the next morning it was decided to shut it down entirely. Ac-
cording to Ferguson, the production line was not long enough or laid out for the
new order since there were substantial differences between the new buses and
the school buses previously manufactured. With the regular school buses, pro-
duction would be doubled. To meet the demand for speed' and the necessity
to retool, it was decided to "sweep the line clean" at once. Changes were made
in the machinery, the layout, and even in the structure of the buildings.
In layoffs and recalls, the procedure as described by Ferguson is to follow
seniority within a department where employees are equal in ability. As we con-
sider motives and seek "the evidence of things not seen," corroboration is found
in the testimony of Roy L. Stevenson, Clifford S. Hall, and A. A. Martin, infra,
concerning reinstatement after the 1952 layoffs Ferguson also mentioned ver-
satility as a factor; but the record does not offer bases 10 for relevant comparison
in that respect. The record warrants the conclusion that where it appears that
seniority on a job was not followed on layoff or recall, it became incumbent on
the Respondent to explain the reason for the action taken ; in the absence of a
valid explanation, a finding of unlawful discrimination is warranted "
General Counsel argues that the spark which set off the layoffs of April 26
and 30 was the union meeting on the evening of the 25th. He alleges that the
layoffs were made to discourage concerted activities. While this may provide
opportunity to speculation, it does not appear that the meeting, attended by
25 or 35 employees, indicated to the Respondent any greater "emergency" than
did the organizing activities generally which, overlooking the limited activities 7
months before, had been going on for several weeks, including distribution of
union cards and talk about the Union."
We are left, then, with the general question whether the union activities
prompted the shutdown. (It is not claimed that the layoffs were discriminatory
as among the employees : no comparison " has been made between the respective
numbers of union and nonunion employees laid off or retained ; nor is discrimina-
tion indicated in the fact that 46 were laid off on April 26 and 15 on April 30.)
9 Leo W. Stewart testified that It was common knowledge through the shop that the
Respondent was trying to get a defense bus contract.
9 The Respondent filed an exception to the 9 .0-day deadline provision when it bid, and
later requested an extension of time.
i° The Respondent pointed to It in connection with Stevenson only.
ii TV. C Nabors Company, 89 NLRB 538.
'' As indicated in the consideration of such items , infra, I do not find that various items
cited by General Counsel indicate individually or collectively that the Respondent 's reasons
for the layoffs were a pretext Timed discriminatorily , the layoffs would be In violation of
the Act; but proof of such discrimination is necessary . While General Counsel points to
the meeting on April 25, I note the evidence of prior union activity and Foreman Carl
White's testimony that 4 or 5 days before April 26 he told Ward that he had heard of union
activities, and Ward replied that Curtis had told him that every man had signed up for the
election .. There is as much reason for connecting the layoffs with these earlier activities-
or simply with the need for retooling , which General Counsel recognizes.
13 Cf. Deena Products Company, 93 NLRB 549.
WARD BODY WORKS, INC. 689
It appears from such testimony as that of O. T. Baker, who had been designated
a member of the Union's organizing committee , that even after his layoff and
reinstatement continuity of employment depended not on organizational activity
but on "the deal" that Ward was working on and how he would "come out with
the agencies on the outside" in connection with that deal. " Had Ward wanted
to "show (his employees) beyond doubt that he was the master of the situation,"
Baker's question concerning continued employment provided further opportunity.
Ward's reply, on the contrary, not only did not assure Baker of employment but
indicated that the answer depended on factors beyond himself and presumably
transcended his own powers to make determinations. Nor is General Counsel's
position in this respect supported by Dock L. May's testimony that when he
sought reinstatement Ward "just said he was going to work things out by The
Golden Rule and put everybody back to work as quick as possible."
Having had the opportunity to observe him at length, I find that Ward is
hardly capable of the dissimulation which General Counsel urges. While, as
found infra, he did otherwise interfere with his employees' concerted activities,
it appears that these layoffs were dictated by a genuine concern over the economic
affairs of the business.
With respect to notice and the manner in which the line was closed down,
Curtis, who was in charge of the line, testified that the only proper way to close
down is to start at the beginning of the line where the first operation is com-
pleted and to close jobs down progressively until the last operation is closed
down . He testified further that the Respondent's line had previously been cut
back (as distinguished from shut down) at slack periods, some employees in
each job being laid off throughout the plant, and that Ward had on such occasions
consulted him the day of layoff or a day or 2 before. On April 26 he learned of
the proposed layoff when the men were notified, 3 or 4 minutes before quitting
time, and the layoff did not follow the proper method, the painters and polishers,
who would under proper procedures be the last to be affected„ being laid off the
same day. He also declared that, had the progressive method been followed, the
3 or 4 buses which remained on the assembly line when he left the following
day would have been completed in 3 or 4 hours.
Whether, with the benefit of Curtis' advice, the Respondent would have re-
tained some employees up to 3 to 4 hours longer , the procedure which it followed
was not seriously different ; it might well appear to be proper to one less expert
than Curtis on such matters. It appears further that the Respondent's practice
was to give even supervisors short notice.'' As for the failure to notify Curtis
earlier, it is clear that he no longer had Ward's confidence and that it had been
decided to discharge him.
Curtis testified that about the last of March or the first of April he reported
to Ward that Dillard Jones had been "involved" in union activity, that Ward
replied, "I will take care of that gentleman myself," and that Jones was dis-
charged the next day. Curtis clearly and positively distinguished between the
date of Jones' discharge, which as noted above he placed in March or April, and
the date when union activities began, early in April. He also testified that he
1; This conversation is further considered infra. It took place on May 16, 2 days before
a consent election conducted by the Board, in which the tally was 88 to 30 against the
Union. The Regional Director thereafter sustained objections to the election, set it aside,
and directed that a new election be held. Scheduled for September 19, 1951, a second elec-
tion was postponed at the Union's request. An election was held on March 6, 1952; the
tally was 145 to 54 against the Union. (rhe Union then filed objections, on which there
had been no decision at the time of hearing herein.
11 0 T. Baker testified that on previous layoffs he knew at noon of the last workday.
Milam declared that he never knew in advance of a layoff.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not know whether union activity had anything to do with the discharge.
Curtis was patently confused.38 Jones was in fact discharged on September 28.
1950, because of certain personal difficulties, Ward testifying that he had not
known of Jones' union activities. There is no allegation of violation of Section
8 (a) (1) or (3) in this connection; but the testimony and its analysis are ma-
terial to the question of Curtis' reliability as a witness and his suggestion of
Ward's animosity at that time.
While not determinative, the employees' impressions are material. They
cited for unemployment compensation purposes the "Mass layoff due to change-
over" as the reason for their separation at that time. There is no explanation
of this or evidence that they recognized the items which General Counsel men-
tions as indicating discriminatory purpose.
As indicated, the Respondent's explanation based on production and change-
over requirements is quite plausible. Lengthy and quite exhaustive cross-ex-
amination did not break down the defense that the April 1951 layoffs were
made necessary by changeover in production methods ; nor has it been shown
that "the timing of the shutdown" was arranged to discourage membership in
the Union.
Ferguson and Ward went beyond this, however, noting that there also were
"financial reasons" 37 for the layoffs, the Respondent losing money as it carried
employees through the slack winter period so that it was unable to continue to
meet its payroll17 (Emmett Moore testified that in response to his inquiry on
May 16, Ward explained the suddenness of the layoff with the statement that
he had been overdrawn and the banks told him to do something.)
An audit,"H commenced about May 8, showed that the Respondent had sus-
tained a net loss of almost $50,000 during the first 4 months of 1951. Its account
was overdrawn some $51,000 on April 22, and approximately $44,000 on April
26. The accountant testified that besides this one as of April 30, 1951, he had
made an audit as of December 31, 1950; he had made no others for the Re-
spondent although he expected to make one in 1952.
The reasons for the audit as of the end of April and for Ward's earlier "re-
quest" that the accountant reconcile the bank account and send a letter, as he
did on May 2, are not at all clear. The suspicion arises that these documents
were self-serving and prepared for exculpatory purposes. The point was not
raised, the Respondent did not explain, and the suspicion exists. But I do not
feel warranted in basing a finding of violation on such suspicion or in assuming
that the Respondent, if put to an explanation, would have betrayed an unlawful
motive.
Reference was made to the fact that chassis, which remained the property
of the distributors, were being received on April 26, the very day of the layoff,
and as they continued to come in they were placed on the lot. Ward explained
that chassis are received for future orders; such receipt "didn't have anything
?e If this confusion concerning union activity before such activity was commenced in April
1951 be explained by Loyce A D. Sowell's testimony that be secretly spoke to Jones about
the Union on September 26, 1950, at the latter's home (it does not appear how the secret
leaked), such testimony points up Curtis' confusion of dates and his failure to recall the
earlier activity
17 In its answer, the Respondent alleged "valid business reasons."
11 Whether its condition was precarious in prior years does not appear.
19 The ratio between sales and labor costs and the increase in inventory during the first
4 months of 1951, both pointed up by General Counsel, do not refute the evidence of loss
sustained in the operation of the business and the testimony that this was the slow season,
the loss being aggravated as unneeded employees were retained Nor does Ward's testi-
mony concerning borrowing on warehouse receipts indicate that he should be declared obli-
gated to continue the practice while operating at a loss.
WARD BODY WORKS, INC. 691
to do with . . . production." The testimony is to the effect that after a distribu-
tor sells a unit, it gives the Respondent an order for the body.
Both necessity to retool and financial stringency are "valid business reasons."
I find that the April 1951 general layoffs were due to such reasons and were not
discriminatory
Thereafter it does not appear, nor is it claimed, that May was given preference
in reinstatement after his layoff on April 26 even though he told Ward that he
had not voted for the Union. In fact, there is no evidence to indicate that in
making reinstatements after these first layoffs the Respondent weighed union
activities. Nor did Maynard suggest discrimination when he testified that Ward
thereafter told him in September that he "needn't have to worry about (his)
job," although his role in union activities was well known?°
What the production potential was after the changeover does not appear ; ac-
cording to Ferguson average production increased from 8 or 9 units per day to
12 with more complicated bodies 21 But production of the Air Force buses was
held up for months while a pilot model was built and many required changes
were made. Actual production of the new buses did not get under way until
October, only school buses being built in the meantime.
The Air Force bus contract was completed on April 2, 1952. According to a
list received in evidence, some 91 employees were laid off on that day. Ward
testified on cross-examination that it had been the practice to recall men as
needed. Differing on the number recalled to the time of hearing, Ferguson like-
wise testified that after the last layoff men were recalled as needed. Discrimi-
nation is not alleged in connection with the latter layoff; it is claimed because of
failure to recall some employ ees.22 Nor has General Counsel indicated or argued
general discrimination on the basis of the number, identity, or union activities
of those recalled and those not recalled.
Concluding this consideration of general discrimination, Ward's reference to
union men running over him when they stopped production does not prove dis-
crimination if in fact there appears to have been valid reason for taking action
against them and such reason is shown to have been the motivating factor. The
questions remain and they will be considered in each case : Were the activities
such as to warrant, and were they the reason for, the action taken, or was the
employee's discharge or suspension, or the failure to recall him an expression of
antiunion discrimination?
C. The alleged individual violations of Section 8 (a) (3)
1. Lea Roy Gill was a member of the Union' s organizing committee. Although
the complaint alleges and the payroll list sponsored by General Counsel indicates
that he had been laid off on April 26, he testified that he was not laid off until
April 30.
He testified that on September 11 Ward said that he was laying him off for
loafing and talking union too much ; that he had 2 men watching Gill and they
20 Antiunion petitions were distributed in May and September. General Counsel has not
suggested any correlation between signatures or refusals to sign, on the one hand, and lay-
offs or discharges, on the other.
n Actually, production varied markedly from week to week. From a comparison which
General Counsel made between a week in September 1950 and single weeks in January and
April (not March as stated) 1952, it appears that with a few more employees approxi-
mately the same number of buses, larger , heavier, and of better quality, were turned out
during the latter periods. This spot check supports the testimony concerning the extent
of improvements made. I have not attempted any analysis beyond that offered or argued
by General Counsel.
22 Such discrimination is alleged by amendment to the complaint made during the hear-
ing. The employees named are listed in Appendix B attached hereto.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported that he had talked union to Earl T. Naylor for 20 minutes. Ward
testified that foremen and Faber Black, a fellow employee, had complained and
that he had warned Gill about not keeping up with his work and talking too
much about the Union during working time. Gill denied to Ward that he had
been talking union or loafing ; he further testified that he had spoken with Naylor
for 5 or 10 minutes about Gill's niece, who was in the hospital.
Gill's "identification" of a stranger as the Respondent's attorney is considered
infra. Nor is his credibility bolstered by his testimony concerning the alleged
surveillance by Ward, infra. Whatever the subject of the conversation with
Naylor which he described, I find that Gill was disciplined by layoff from Sep-
tember 11 to 20 because he talked too much and neglected his work.
2. Dock L. May testified as follows : After the election in May, he joined the
Union and spoke to every man in the shop about it ; he "went to work on it."
Thereafter he was assigned a different job "about every day" ; one of these new
jobs was to put the top on buses, but Jack Ward told him that he had misunder-
stood and that he was to drop that job. May and his partner continued neverthe-
less to put tops on "once in a while" for 2 or 3 days although Jack Ward told them
"a time or two" to drop it There followed a conversation "around July" between
May and Black, in which the former stated that it would be a sin to vote against
the Union ; May then watched Black go into Ward's office, and a few minutes
later Ward approached, called to May, and fired him. When May sought the
reason, Ward asked whether he had not been told to put the tops on. He replied
both "Yes," and "Jack told me not to," which latter (Dave) Ward denied.
May was positive that from where he worked he could see the door "that went
into" Ward's office. Counsel later agreed that he could not see Black going into
Ward's office, but could see him going into the office building. There does not
appear to be warrant for assuming that May meant the building when he testi-
fied. But in any event I do not credit his testimony that he was discriminatorily
assigned many different jobs, then told several times that he did not have to
perform a given one ; xa but that he and his partner voluntarily continued on it
until one day when he did not and was fired. I find that Ward's explanation
that he charged May with failing to do as he was directed, and that he fired
May after the latter said that he would then do the work is valid and sufficient.
(It is not claimed that May was preferred over others during the April layoff
when, as noted infra, he told Ward that he had voted for the Union.)
3. William L. Bradshaw, an active union adherent, suffered an eye injury
while working on August 3, 1951. He was thereafter treated by Dr. Dunaway
and Dr. Snead. Bradshaw was 65 years old at the time of the hearing, but he
had apparently done good work on the jobs assigned to him. He testified that
Jack Ward praised his work, and Berry testified that Bradshaw's work was
"all right."
At some unspecified time after August 3, Ward told Bradshaw that Dr. Dun-
away had said that Bradshaw had an old infected kidney. The doctor testified
that he had so informed Ward, and later at Bradshaw's request called Ward and
told him that Bradshaw's kidneys were all right. Dr. Dunaway also testified
that Bradshaw told him "that he didn't feel like he was physically able to do
the type of work he was doing," and sought the doctor's aid in getting an easier
job. According to Ward, he told Bradshaw to get a release from both doctors ;
Dr. Dunaway gave him one over the telephone, but he never got one from Dr.
Snead.
23 I credit Marion E. Breeding 's testimony that the job was a necessary one and had
been assigned to May.
WARD BODY WORX$, INC. 693
On September 7,2' a month after his injury occurred , Bradshaw reported back
for work . But Ward told him that Dr . Snead had said he would have to get
eyeglasses . If there was any question concerning a release from Dr. Snead, it
was apparently in this connection . Ward did not deny Bradshaw 's testimony
that he told the latter that Snead had indicated glasses. It appears , then, that
any demand by Ward connected with Bradshaw 's condition and the doctors' ap-
proval was satisfied when Bradshaw got glasses and reported to Ward on Sep-
tember 10. (No question was raised and there is no issue concerning absence
of a formal release. ) The latter did not recall whether Bradshaw was wearing
glasses at the time of their last conversation . He denied Bradshaw 's testimony
that he told Bradshaw that he knew that the latter was "100 percent for the
Union and nothing for" him , and that he would not put him back to work in
the shop but would fix a place for him and let him know when to return. Brad-
shaw was not thereafter recalled to work.
I find, as indicated by Bradshaw , that on September 6 Ward told him to get
releases from both doctors ; that there was no further question of releases on
September 10 when Bradshaw returned with eyeglasses ; that Ward then
promised to recall him but did not ; and that the failure so to recall and to
reemploy Bradshaw on September 10 was due to his union activities. (As found
infra, Ward had previouslytinterfered with such activities of Bradshaw.)
4. Joe C. Langley was included in the April 26 layoff and recalled on May 28.
Approximately 2 or 3 weeks later he signed a union card at the request of his
son-in-law, J. C. Coker. Ward discharged him on July 2, allegedly for failing to
perform a necessary task which had been assigned to him.
Langley testified that he had earlier been complimented on his work, had
never before been disciplined, and that when Ward charged him with failing
to remove water which constituted a serious hazard, he replied that Edward
Stapleton was using the scoop; that Ward then said that Stapleton was not.
Ward's testimony that there was more than one scoop stands uncontradicted.
According to Langley, he had been at work approximately 10 minutes when
Ward spoke to him. In view of the danger inherent in the presence of the
water, as testified, I am unable to find that Ward's action was unreasonable or
discriminatory.
5. J. C. Baker, Jr., testified that on July 11, 1951, a few days after he joined
the Union, Wade Howell, his foreman, told him that Ward wanted him to get
into the next bus as soon as it left the oven. (He had previously received orders
from Ward to wait 30 minutes after the bus emerged from the oven before going
in to put the floor mats down The time can be cut to 15 or 20 minutes with a
fan to blow cool air in.) Howell testified that be merely passed the work along
from Ward, who had told hint that the buses were coming from the paintroom a
bit faster and that he should tell "the boys in front" so that they would be pre-
pared According to Howell, the buses have time to cool before the men get in
to work on them ; to snake room for the buses coming out of the oven means
to move them along so that three can stand in line after they have emerged, the
last being cooled while the earlier ones are worked on further.
Baker's belligerent reply, "Hasn't he got nerve enough to tell me to crawl in
that hot bus," brought Ward, who "got onto" him. During the ensuing argu-
ment, Ward charged Baker with asking Ward's 11-year-old son for his social-
security card and otherwise teasing the boy, which Baker denied doing. (The
latter testified that the younger Wharton did the teasing, but that he did not so
inform Ward.) 26
24 September 6 is probably the correct date, as alleged in the complaint ; Bradshaw
referred to it as being a Thursday.
20 Harold W . Wharton testified that he had teased Ward's son.
257965-54-vol 103-45
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ward's impression about the teasing of his son, even if mistaken, and Baker's
manner (his attitude was exemplified by his gratuitous reference to Ward's
"old lady") were sufficient reason for the discharge. It does not appear that
his discharge was connected with union activities.
6. O. T. Baker joined the Union on April 16, was laid off on April 30, and
recalled on May 16. He testified that he was a member of the organizing com-
mittee, although he was not included among those named in earlier testimony.
As noted infra, on his recall he discussed with Ward the likelihood of steady
work. Thereafter, he left to seek work in St. Louis, but was reemployed on his
return. Ward testified that he knew "all the time" that Baker was a union man.
According to Baker, two brothers, Bill and Jack Brazear, on July 21 engaged
in a fight with what he first described as paper wads and then as heavy balls of
masking tape about the size of a baseball; Jack Brazear said he was going to
complain to Ward ; the latter came over, charged Baker with throwing wads
after he had been warned not to, and fired him. Baker denied to Ward that
he had been warned and that he had thrown any ; he testified that he had thrown
wads on previous occasions, but had quit after "warnings." He later explained
that the only warnings he had received were signs posted in the shop. Fore-
man White testified that in March he had told the men that if anyone threw
such wads thereafter, and it came to White's attention, the offender should
"just get (his) card and take off."
Leroy Speights, another member of the Union, who "talked union" in the shop
and testified to a threat by Ward in connection with union activities, was among
those present at this incident. He testified that after Baker had been fired,
Ward charged him with being involved also, that he acknowledged that he had
thrown one wad, and told Ward that Buell Reedy had thrown two but Baker
had not thrown any. (Oran G. Robinson testified that he didn't see anyone
other than Bill Brazear throwing wads.)
Jack Brazear apparently told Ward that Baker, Speights, Bill Brazear, and
Robinson had thrown wads. Ward testified that he first confronted Baker,
who denied throwing any, turned red, and started to cuss; Ward "knew some-
thing was wrong," and fired him. Speights "owned up . . . like a man" ' to
throwing one wad and Ward warned him that he would be fired if he threw
another. Robinson "acted like a man" when he denied throwing any. Jack
Brazear apologized and was given a warning.
Ward was angry when he appeared on the scene. Had he been motivated
by unlawful discriminatory intent, he might more likely have acted against
Speights. True, failure to discriminate against a more active union adherent
does not rule out discriminatory intent. But the evidence does not warrant a
finding that Baker was discharged because of union activities.
7. Leroy Hazel joined the Union on April 26. He was not laid off. On June
8, Ward came into the shop quite upset, as Hazel testified, charged Hazel with
causing him to lose $500, and fired him. Ward called him back to work the
following day, apologized for losing his head, and directed him to report back at
a higher rate. Hazel lost approximately a day and a half. This incident indi-
cates Ward's excitability. The discharge, although unwarranted, was not a
violation of the Act ; there is no proof that it was prompted by Hazel's union
activities although these were known to Ward and were interfered with by
him, as found infra. Although Hazel testified that he had been talking about
the Union shortly before his discharge, the time sequence does not prove
26 The characterization is Waid's: in harmony with his indicated manner , it excludes
cursing ; whatever it suggests to him , it does not exclude union activities.
WARD BODY WORKS, INC. 695
cause in the face of his own description of Ward's manner and the latter's
explanation.
8. Charles C. Hartzell testified that he had worked for Ward 10 or 15 years
ago, and that on October 25, 1951, he asked for a job and Ward told him to re-
turn in about 2 weeks ; that when he returned on November 5 to see Ward, "the
lady in the hall," evidently the receptionist, told him that Ward was out and
directed him to a gentleman whom he saw at Ward's office door. This gentle-
man, identity unknown, when told that Hartzell wanted a job, asked him
whether lie was in favor of the Union, and when told "I might be and I might
not," said, "If you are, I couldn't use you." Hartzell thereupon walked out;
he "was waiting to see (Ward) because (he) knew (him) personally." In the
light of Hartzell's testimony concerning Ward's attitude, his reliance on Ward
as a "good employer," the indefiniteness Z' of identification of the alleged dis-
criminator, and Ward's denial that he had anyone who met the description of
that unidentified person, I base no finding of discrimination on this incident."
It is clear that Hartzell was to return and to see Ward about a job. It appears
that he never did ; for the reasons just noted and the additional fact that he was
determined to see Ward "personally," I do not believe that his failure to return
was caused by the alleged remarks of -November 5." There is no evidence of
any other reason
9. Leo W. Stewart joined the Union on April 25 and was named a member of
the organizing committee. In July he was elected chairman of the group. He
distributed union cards, signed up members, and wore a union button.
Stewart's job was putting on the sides and tops of buses. Thornton testified
that after the layoff in April 1951 Stewart started to do faulty work and his
attendance became irregular. As found infra, however, it does not appear that
he was discharged for these reasons.
According to Stewart, just before quitting time (5 p. in.) on Thursday, Decem-
ber 13, Thornton "asked (him) if (he) could stay and work over"; he was tired
and needed rest, and told Thornton that he didn't feel well and was worn out,
and Thornton said he would get somebody else ; and that evening as usual Roy
Stevenson drove him home from work. The next day he "didn't feel like putting
in a day's work," and didn't report. He did report on the following Monday,
only to find that his card was not in the rack. He inquired of Thornton, and
was told that he had put the Respondent in a tight spot and that they would
have to get somebody in his place. Stewart testified further that he had never
been reprimanded before, but had been complimented on his work.
According to Thornton, he asked Stewart to work later to correct some work
which he had performed poorly, but Stewart replied that he could not stay.
Ward was there at the time, and "took over." Thornton also testified that he
reported to Ward that Stewart refused to stay, and that Ward replied that they
would have to let Stewart go if he didn't do better. Clearly, Stewart was not
discharged because of the work which he had allegedly poorly performed or
because he did not work overtime. When he failed to appear the next day,
Thornton reported his absence to Ward and, at the latter's direction, pulled
27 Cf Heider Manufacturing Company, 91 NLRB 1185.
281 am impelled to doubt the accuracy of Hartzell 's account of his conversation with the
unknown gentlemen. After a conversation with Gill (I rejected General Counsel's offer
to prove that Gill told Hartzell that Ward would not hire him if he said he favored the
Union ), Hartzell had told Ward that he was not a union man Yet he testified that his
reply to the other man on November 5 was equivocal . Whatever the truth and Hartzell's
motive , there is no explanation for a change during the intervening period.
2' This is offered not to disprove discrimination , but further on the issue of Hartzell's
credibility.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stewart's card , in effect discharging him. Stevenson 's testimony stands and is
credited" that about three-quarters of an hour after he had started to work
Thornton asked him whether Stewart was coming in that day and he replied
in the negative , explaining that Stewart wasn 't feeling well. Thornton himself
testified that Stewart seldom gave either reason or notice when he was absent,
and that he was not scolded, disciplined , or asked to give a reason.
Stewart did not report on Saturday either. On Monday, Thornton testified,
when Stewart asked about his card, Thornton told him he had been fired for
being absent . In fact, Thornton testified further, he had fired Stewart both
for being absent and for faulty work.
Thornton's testimony differs materially not only from Stewart's but also
from Ward ' s. I am not impressed by his credibility . At one time he declared
that he told Stewart his absences "couldn 't continue " ; later, that he had not
scolded him for being absent; there was a rule against absence, but he didn't
recall what it was or when it was in effect. (Ferguson declared that Stewart
was absent 12 of the last 73 working days of his employment.)
Ward testified that Thornton came to his office and reported that Stewart
refused to stay to fix a side sheet which he had messed up . Ward replied,
"Let him go . I will help some." Ward then went out and helped put the
sheet on. (Stewart testified that two other employees on his team worked
later , and when he begged off , Thornton without argument said that he would
get another man ) Again it becomes evident that Stewart was not discharged
for work improperly done or for refusal to stay.
Continuing, Ward testified : "The next morning he wasn't there and the
Saturday, he wasn't there. Well, the next day, if we hadn't fixed it in the
evening, it would have cost from $300 to $600 that day and it cost $300 on
Saturday. One thousand dollars for a roan in two days is too expensive for
Ward Body Works."
There is no suggestion in the record that Stewart or any other rank-and-file
employee was responsible for the completion of a job or the efficient operation
of the plant beyond his duty to perform adequately. Nor did Stewart, Ward,
or anyone else contemplate leaving the former's work undone until he reported.
Under the circumstances there is neither basis for nor indication of any actual
feeling of outrage when Stewart was discharged on Friday morning. The
possibility of loss (covering a period of 2 days, most of which was subsequent
to the discharge early Friday) here conjured up is as unreal as any speculation
concerning what might have been mere routine procedure not followed. There
is further reason for not considering Ward's testimony" that Stewart should
have reported on Saturday : his failure so to report ,N as manifestly not the
reason for his discharge the day before.
That the incident on Thursday was regarded as routine prior to Stewart's
absence is seen from Ward's reaction and the failure to take or threaten action
against Stewart on Thursday. As for the element of absence, it is clear that
unreported absence was not unusual at the plant and was accepted without
reprimand's
A I do not credit Thornton ' s denial
ai This was corroborated by a subsequent stipulation that Stew art had worked on the
several Saturdays immediately preceding
ii It is unnecessary to consider the testimony of other employees concerning reporting
or failure to report absences We have already seen that Stevenson reported Stewart's
absence on December 14, and that Thointon admitted that be had not "scolded" despite
frequent absences Stewart testified that lie lived 23 miles from the plant and that lie
had no telephone.
WARD BODY WORKS, INC. 697
In passing , it may be noted that we need not credit Stewart's statements that
he wasn 't feeling well on Thursday and that Thornton asked whether he "cared
to stay." Reflection on the evidence concerning the meeting which he attended
that evening might lead to another conclusion with respect to the reason for
his unwillingness to remain at the plant . But the issue before us is the reason
for his discharge , and I find that he was not discharged for the reason stated,
his absence on Friday and Saturday , nor for faulty work or refusal to stay later.
In the absence of satisfactory explanation for Stewart 's layoff, I find that his
known union activity was the determining factor "
10. Roy A. Johnson testified that shortly after the May election Ward threat-
ened to fire him if he didn't change his mind about supporting the Union (his
leadman, he declared , told him that Ward had asked for "permission" to
speak to him !) ; he thereupon offered to quit, but Ward said , "No, go on and
work awhile and see if you don't change your mind ." Earlier Johnson had
been involved in some difficulty with the Respondent over welding material
which was found in his truck and which he was charged with stealing. One
day in September 1951, when Johnson reported for work after a 2-week absence,
his card was not in the rack . He inquired about it, and Ward allegedly charged
him with being absent too much and talking too much for the Union Ward
had previously endorsed a note for Johnson , and the latter 's immediate reaction
to the discharge appears to have been limited to a promise to try to get an
extension from the bank . ( Ward ultimately paid the note )
Johnson explained his latest absence by reference to a hernia operation which
he said he had had in the spring or summer. He denied that it was an old
hernia, but the doctor, who operated on him a year before the discharge , testi-
fied that it was. The testimony indicates that more time had elapsed since
the operation than would normally be required for return to work.
Ward testified that he did not discharge Johnson: the latter "just began to
just drift out ." There are various elements in Johnson's testimony concerning
his alleged discharge and some independent interference , infra, which are not
credible . I find that he was not discriminatorily discharged.
11. Clarence "Bill" Maynard was 1 of 2 sheet metal power hammer operators,
the other being J. F. Stapleton . Maynard was on the Union 's organizing com-
mittee, spoke to people about the Union , and got them to sign cards. He was
laid off on April 30 " and recalled on May 31.
At a meeting in Ward's office preliminary to the election which was scheduled
for September 19, and which was attended by representatives of the Union,
the Respondent , and the Board , Ward remarked , as mentioned supra, that May-
nard "didn ' t have to worry, that ( he) did (his) work; . . . but (he ) talked
too much union and ( he) needn't have to worry about his job." Both Jack
Ward and Berry had complimented Maynard on his work . Whether before
or after this preelection meeting does not appear, but about a month before
he was laid off on October 1, Maynard 's work was criticized by Thornton. As
Maynard explained , "Mr. Stapleton was running the corners first and his ham-
mer ^ was in bad shape , and it was bringing them up into knots or dents that
my hammer wouldn ' t get out." Berry referred to one occasion when a knot
appeared after Maynard had stretched the metal , and the corner could not be
finished properly.
33 W. C Nabors Company, 89 NLRB 538.
14 He so testified , the complaint alleges April 26.
15 The Respondent does not claim that Maynard 's work was poor But General Counsel
raised the issue of quality as between the two operators.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maynard testified further that 4 months before he was laid off, he was told
by Berry that only one hammer operator would be needed if certain dies came
out right '' Berry later testified that, as Maynard declared that he had predicted,
with the new dies the rough hammer was not needed.
When he clocked out on October 1, Maynard found a notice of layoff "Due to
lack of materials to start Army Bus." That Maynard was discharged so soon
after Ward's assurance is strange. But the value of the assurance might well
have been questioned in view of Berry's warning of possible dismissal of a
hammer operator. - And this brings us to the selection of Stapleton over
Maynard.
To prove that Maynard's discharge, Stapleton being retained, was not dis-
criminatory, Ferguson testified that the latter had greater seniority, did better
work, and was paid at a higher rate. In the latter connection, he was less than
frank. Armed with notes which he had prepared from the Respondent's records
pursuant to prior request, he testified that on October 1, the date of Maynard's
discharge, the latter's rate was 95 cents while Stapleton's was $1.05. He ex-
plained that Stapleton was paid more because he was there longer and was a bet-
ter operator. Later, with the records available at the hearing, he testified that
both were receiving 95 cents on October ]; Stapleton was increased to $1.05
the following week, when a general 10-cent increase was put into effect. Fergu-
son sought to explain his earlier testimony by stating that Stapleton was
generally "ahead of" Maynard, and that, if for a time, the latter was moved
up to the same rate, the former would be moved up again as the records were
reviewed. He further testified that Stapleton had been receiving 95 cents since
1949. But it does not appear how long Stewart had been at that rate, nor
whether lie would not have been included in the general increase had he not
been discharged.
On the issue of Ferguson's reliability on the stand, I note also that while
purporting to read a memorandum he interpolated by including an explanation
which was not part of the memorandum. In the main, I have not relied on
his testimony where other, either corroborating or contradictory, is available.
The matter of relative rates of pay is left unproven. There remain the
items of seniority and skill. It is not disputed that Stapleton had greater
seniority. But to meet this, and perhaps the question of comparative skill, it
was testified on behalf of General Counsel that during previous slack periods
Maynard had been retained while Stapleton was laid off ." As the burden
thus shifted, the Respondent met it as its witnesses testified that Maynard had
previously been retained because he had a family and Stapleton had agreed to
being laid off because he was single ; but on October 1 the Respondent knew that
Stapleton was about to be married, and he did marry about October 20. Waiver
of seniority rights does not bar later assertion of such rights. Nor is the
reason cited, imminent change in marital status , so improbable as a reason as
to indicate that the motive was in fact discriminatory (even if we overlook the
preference accorded Stapleton earlier in the year).
3e Further remarks by Berry at that time are considered infra.
sv The record shows, however , that Stapleton was not laid off in April 1951. While
General Counsel includes Maynard in the allegation of general discrimination at that time,
no claim is made that Stapleton was in that instance improperly favored over Maynard.
The April 1951 layoff mars the picture which portrays the latter as being favored until
October 1951 ; on the other hand, the Respondent, not denying General Counsel's claim
that he had been so favored , did not explain Stapleton 's retention in April The fact
herein noted reflects on the reliability of the testimony by Gill and Maynard , and undercuts
the point raised by General Counsel
WARD BODY WORKS, INC. 699
Concerning relative skill, Curtis testified that Maynard did the better work ;
but significantly his assumption, that Maynard had more experience was based,
not on the quality of work done, but on the fact that be alone was on the job
when Curtis arrived in 1950. Berry, who supervised the hammer operation, testi-
fied that the smooth hammer calls for greater skill than the rough hammer and
that Stapleton was more skilled than Maynard and worked on the smooth ham-
mer. Of possible relevance in this connection is Maynard's defense of his own
work hereinabove quoted, in which he blamed defects on Stapleton's hammer,
not on Stapleton. Ward, who impressed me as acquainted with the details of
each employee's work and ability, testified that he retained Stapleton because
he was the more finished operator and had been there longer. It surely has not
been shown that Maynard had greater skill than Stapleton.38
No issue has been raised concerning the validity of the reason given in May-
nard's layoff notice, lack of materials to start Army bus, whereas it was claimed
at the hearing that his services became unnecessary. Further, whether on that
date there was a shortage of material to be processed in other operations, the
issue tried was the need of more than one hammer operator thereafter. Nor
would the statement of lack of material indicate shifting of position 89 or after-
thought if in fact Stewart was not replaced ; lack of material and improved
process (in its immediate effect) would each result in lessened employment.
Aside from the fact that the reason cited in the notice was not argued and
therefore not explained, there is no doubt that a second hammer operator was
not thereafter needed. The layoff of one of the operators was therefore fully
understandable unless there was discrimination in the selection for layoff. As
noted, I find no discrimination in the retention of Stapleton.
To refute the Respondent's claim that only one hammer operator was needed
and in fact employed after October 1 in addition to such work as Berry per-
formed, Maynard testified that at the latter's request he taught Harrest D.
Thomas, "not too long," to operate the hammer, and that as he drove by the
plant the day after his discharge, and again later that week and the following
week, he saw Stapleton and Thomas operating the hammer. Thomas testified
that when he was hired in July 1951 he had been shown by Maynard how to
operate the hammer, and he had done it for one-half day ; further, that he
operated it for only one-half day in 1952 when he had caught up with his work,
and at no other time since Maynard's discharge. Aside from this issue of credi-
bility, it appears that the rough hammer, which Thomas would presumably have
been operating, was not visible from the street.
I find that Maynard's discharge was not discriminatory.
12. Roy L.40 Stevenson was employed by the Respondent from August 1950
until the. end of the year, and again in August 1951. He was a member of the
Union, wore a union button, and spoke to others both in the shop and outside
about the Union. Stewart rode to and from work with him. About November
2 he received a notice that he was "laid off until adjustments are completed,"
and he was off for 9 working days.
Ferguson testified and the production chart indicates that production was
low at this period, which saw the main changeover from school to Air Force
as General Counsel later offered to prove that they were of equal ability.
I do not here consider Ward's or Ferguson's testimony which suggests Stapleton's greater
versatility, since the Respondent did not claim to have relied on such versatility. On the
other hand, his transfer to other jobs does not prove that Stapleton was less skilled as
a hammer operator.
° Cf. International Furniture Company, 98 NLRB 674.
49 Erroneously referred to as "Floyd" in the transcript , which is hereby corrected.
TOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buses. The increase from 5 to 9 buses per week is relatively great ; but both
figures show that production was then at the nadir. Nor is the overall increase
in number of employees from 186 to 188 significant : the figures include office
and construction employees. There is no evidence of discrimination in this
layoff.
Stevenson was laid off again on April 2, 1952. He testified that Don Cardin
and Ed Cardin were hired after he was and were called back after this layoff
whereas he was not; they had done the same type of work and worked with
Stevenson, drilling holes and bucking rivets. Although by question the Re-
spondent's counsel suggested the possibility of Ed Cardin having been employed
before Stevenson , the latter answered in the negative, and there is no evidence
to the contrary. A week or two after he was laid off, the Cardins told Steven-
son that they were working in the same place."
Ferguson did not question Stevenson's greater seniority when he undertook to
explain recall of his two coworkers He noted rather that "These other men
can weld and lay out metal," and that he "needed those skills." It does not
appear that their other skills were utilized after they were recalled ; Stevenson's
testimony stands concerning their working "there in the same place." Neither
has it been shown that they had done such work before the layoff or that the
Respondent, when they were recalled, had knowledge of or based the recalls
on such skills. The meticulous construction which I here make of Ferguson's
testimony is warranted by that which he offered concerning Maynard and
Stapleton His description of what Don Cardin and Ed Cardin can do is
unique in the context of his entire testimony and, considering his training also,
impressed me as avoidance of a direct question by the Respondent's attorney.
Nowhere else does versatility appear to have been a factor ; here we have po-
tential versatility. I find that the failure to recall Stevenson when the Cardins
or either of them were recalled after the April 2 layoff was not adequately ex-
plained and was discriminatory.
13. Clifford S. Hall at one time punched holes and later did sanding He was
employed in September 1950 and was laid off in November. Reemployed in
June 1951, he was among those laid off on April 2, 1952: he was not recalled.
He testified that he spoke to others for the Union, but attended few meetings and
never wore a union button. He referred to one man hired after he was, to do the
type 92 of work he had done, who was not laid off. He testified that he was never
reprimanded, but that he had "told them time and time again if (his) work
wasn't satisfactory to tell" him. He was related to Ward by marriage, but this
fact does not appear to have prompted the failure to recall him.
Ward testified in detail that Hall's work was poor. Foreman Howell testified
that he frequently spoke to Hall about his poor work and had it redone; and
that after the Government contract was finished, there was need for only one
sander, and the better man was retained.
According to Hall, when he returned to the plant about a month after the
last layoff to see when he could go back to work, Ward asked him whether he
would work for less pay, and he replied that he would not. Ward denied any
such conversation. I find that Hall's work was unsatisfactory and that the
failure to recall him was not discriminatory.
14. Aubrey Alonzo Martin, hired in May 1950, was not laid off the following
April. He joined the Union about the time of the election in May but signed
41 This testimony, as does that of Clifford S Hall and A A Martin, infra, suggests the
recognition of seniority in the same type of work, as found supra
41 See footnote 41.
WARD BODY WORKS, INC. 701
an antiunion petition shortly after the election. He was a union committeeman
and recruited a few members. On or about November 2, he was laid off for 9
days without explanation. As in Stevenson's case, this layoff appears to have
been warranted during the changeover from school to Air Force buses.
Thereafter he was laid off on April 2, 1952. He indicated that he wanted to
return and later reported to Thornton, who said something about welders and
that "he wasn't lined out." When asked whether he knew of anyone junior to
himself who had been called back, he replied, "Not right in there where I
worked." " Although he testified that he had worked on many different jobs, not
only is there no proof of a plantwide seniority system, but the qualification,
"where I worked," which he placed on his answer indicates that he did not recog-
nize the existence of plantwide seniority. General Counsel did not claim that
such a system was recognized despite his question to Martin whether he was "able
to perform" an operation which he testified was not his job.
Martin testified further that when he was laid off on April 2, he had been
hanging doors, but not for long-on not more than 4 or 5 buses. He later stated
that he could not tell how long he had been hanging doors ; he didn't know "how
many weeks."
Questioned again about recall of others, he testified Doug Naylor was recalled,
"hut he wasn't working where I was." Naylor had evidently worked as R. F.
Martin's helper on front doors, where A. A. Martin had "helped a little" although
"it wasn't (his) job." In this connection, Ward testified that A. A. Martin was
too large to hang those doors, and that Naylor had more seniority on that job
and took R. F. Martin's place.
On cross-examination, Ward testified that there had always been complaints
concerning A. A. Martin's work, testimony which would have been suspect if the
failure to recall Martin had been based on such alleged shortcomings. But it
appears clearly that after the cutback no one junior to him under the system
employed and recognized was recalled ; discrimination has not been shown.
15. Romi" Frank Martin joined the Union about April 1951 and attended two
meetings, but never wore a button. His job in 1951 and 1952 was hanging front
doors. He was not laid off in April 1951, but was on April 2, 1952. At that time,
Ward instructed those who wanted to come back to leave their name. Martin
testified, "I figured I wasn't no stranger there and if they wanted me, they would
call me." He did not leave his name, nor has he returned to the plant for em-
ployment. Here was no discriminatory failure to recall.
16. Harold W. Wharton was employed by the Respondent for a week in June
1951, during which time he pushed a buggy on construction of Ward's house,
then washed bus bodies, and then laid door matting. He joined the Union. He
testified that after his layoff, which was stated to be "until further notice," he
asked Ward the reason and the latter replied that it was because he "had been
talking union around." I credit Ward's denial of this conversation and his ex-
planation that young Wharton was laid off because "he didn't know how to work."
Wharton was confused concerning the season of the year when he worked and
the length of his employment. He testified that no one complained to him about
his work, but that Thornton complained to his father, who replied that his son
didn't like his job. The transfer was thereupon made to floor matting. Wharton
testified further that be had not liked the job of washing buses, but did not recall
whether he so told his father ; also, that he was satisfied with the floor matting
job but not with the pay. I find no discrimination in Wharton's layoff.
*4 Ibtd.
" Erroneously referred to as Roma in the transcript, which is hereby corrected
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17. Wesley Harrington signed a union card in 1951, but does not know at what
time of the year. He was laid off on April 26, 1951, and apparently re-
called on May 28. He was again laid off on April 2, 1952, and the Respondent is
charged with discriminatorily failing to recall him. He received a recall letter
and returned to work on June 13. (Tere is no warrant for assuming that, like
R. F. Martin, supra, he failed to leave his name.) There is no evidence of dis-
crimination against Harrington in connection with the layoff in 1951 or the failure
to recall him sooner in 1952.
D. The alleged independent violation of Section 8 (a) (1)
Testimony was offered concerning many instances of alleged interference with
organizational activities. The law permits the expression of views which are
neither promissory nor threatening. As in creation, as in a fine chorus, the
order is diversity in harmony. Uniformity is not demanded ; harmony is.
Opinions need not be uniform ; but, however diverse, they must harmoniously
permit free choice-and choice is free when it is based on an informed opinion,
pro or con, but unmarred by discordant suggestion of bribe or force. Whether
various acts were committed and words uttered, and if so whether inquiries
and arguments and opinions expressed were violative needs to be considered
in the light of these general principles, which the Act recognises.
1. Surveillance
Gill testified that on May 17, 1951, the night before the first election, he
saw Guy B. Lindsey, a driver who had attended a union meeting that night
and continued in attendance at other meetings, talking to Ward in the latter's
office; and that after three other meetings he saw Ward, Mrs. Ward, Lindsey,
and Mrs. Lindsey in the office. On these occasions the blinds were not down,
and any passerby could see inside. Gill never spoke to Lindsey about being
in Ward's office, and Lindsey continued to attend union meetings. The meeting
hall was located 4 blocks west of the plant.
Roy Johnson testified that one night he, Maynard, and Bradshaw followed
Lindsey from a union meeting to Ward's office. Johnson did not speak to
Lindsey about the matter either. From the fact that the latter continued to
attend meetings without objection or remonstrance, one may wonder whether
those who allegedly observed him thought that he was acting as Ward's observer.
Ward testified without contradiction that he was at the office late every
night. Lindsey delivered buses and left on trips at midnight, coming in for
money before he left. Ward testified further that his venetian blinds are
always closed so that no one can see into his office from the outside. It is
unlikely that, had there been surveillance, the presence in Ward's office of
those involved would have been so readily revealed. General Counsel has not
proved surveillance.
Pointing to implied surveillance," Callahan testified that on April 26 Leroy
Thomas told him he understood there had been a large crowd, about 75, at the
union meeting the night before. In the absence of explanation of the circum-
stances, such a statement by a supervisor, indicating knowledge of conditions
and events at union meetings, tends to interfere with employees' union activities.
As much may be said of such a seemingly innocuous pleasantry as Curtis' "Hello,
Mr. President," to Luther Brannon after the latter had been elected chairman
45 Tennessee Egg Company, 93 NLRB 846
WARD BODY WORKS, INC. 703
of the committee or of the meeting.96 These items are so trivial, however, that
I base no violation on them. I make no finding of surveillance, actual or implied.
2. Petitions
Within a week after the May 1951 election, and in response to a newspaper
report that the men had been denied the right to vote as they wanted to, Thorn-
ton prepared a document which he hoped would be signed by all of the employees.
It purported to deny the newspaper report. He offered it to employees for
signature but destroyed it when he found that he could not get all to sign. Even
were Thornton not a supervisor during this period, his duties were such that
employees identified him with management.47 His distribution of the document
was regarded as the Respondent's. It was not connected with any official in-
vestigation, but as an unwarranted inquiry and solicitation prompted by Thorn-
ton's desire to get something "in the paper that (would) be pleasing to every-
body," constituted interference with employees' organizational activities.
Thereafter and evidently in response to the charges contained in the newspaper
article and the objections to election filed by the Union on May 21, a statement
was distributed during working hours and signed by 114 employees to the effect
that they had not been coerced or influenced by the Respondent in connection
with their vote in the election. The statement was distribued by Foreman L.
D. Oliver" and the signatures certified by him as genuine on June 1; it was
then turned over to the Board's field representative. Whatever weight attaches
to such a statement, it represents an effort by the Respondent to investigate and
meet a formal charge made against it. I do not find this to be an unlawful
circulation of a petition which was "restraining and coercive regarding Union
activities."
After postponement of the election scheduled for September 19, and under
date of September 26, Virgil F. Montgomery and T. J. Carter, rank-and-file em-
ployees, distributed throughout the plant and obtained 159 signatures on a
petition disavowing the Union. (Despite the reference to employees entitled to
vote, signers included supervisors.) This was done during working hours and
in the presence and with the knowledge of supervisors although certified by the
distributors as having been signed without "pressure" from any source. Ward
was no less responsible for the petition, which he saw distributed and for the
effect of such distribution in his presence even if, as he testified, he was not
aware of its contents" Further, Jack Ward assigned Stewart to Montgomery's
job while the latter distributed the petition. (Maynard testified without con-
tradiction that his supervisor, Floyd Berry, told him that the petition meant
"the windup of the union business.") Preparation of the document by an
attorney at an employee's expense limits but does not lessen the Respondent's
interference.
+e Brannon was laid off from April 26 until May 28, 1951, but apparently not thereafter.
He quit on May 2, 1952
47 Footnote 6, supra. Johnson Wade Howell accompanied Thornton one evening in
obtaining three signatures to this document. Although Howell's status at the time is in
dispute, it appears that in April he was "in charge" and was asked to work out some
trouble in the paintroom, and that Ward instructed him to avoid union discussions with
the men.
49 Gill testified that he was speaking with Oliver when Thornton brought it to him
He may have confused it with the document which Thornton distributed. A. A. Martin
testified that Oliver brought both of these around.
48 The Respondent indicated knowledge when it produced evidence that Montgomery was
not paid for time circulating the petition
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear that Ward objected to employees' talking too much about the
Union during working time and to union men running over him by stopping
production, as noted supra. The pattern had previously been well estab-
lished and a lawfully applied rule had been in effect : employees were not to
talk excessively at the expense of their work. Whether Thornton's abortive
and limited petition attempt had marred its application, marred it certainly
was by the distribution of the September petition. Under the circumstances,
the Respondent discriminatorily favored the antiunion activities of Montgomery
and Carter, considering the time required to read the petition and the number
of signatures obtained, and thereby interfered with employees' organizational
activities."
3. Other instances 51
Head Bookkeeper George Cummings 82 is charged with a cryptic "You are the
cause of it," or "It is your fault," as testified by Gill and Maynard (they dif-
fered on other details of the conversation), when Gill called for his check on
May 4, 1951. A well-dressed gentleman, who Gill later "found out" was the
Respondent's attorney, Charles H. Spoehrer, motioned to Cummings not to
say any more. How Gill later identified this gentleman does not appear. Spoeh-
rer was in St. Louis throughout the day of May 4. Milam (known to the em-
ployees, of course) testified that he was in Cummings' office at the time; Spoehrer
was not Cummings testified that he did say, "It is your fault," and that he had
reference to Gill's financial condition, the latter having stated that he needed
his check I find no interference here.
Ward's protest to Gill about the early part of June 1951 because the latter
"hemmed up" Black in the toilet and tried to make him join the Union was
valid. Not so his statements that he was getting tired of Gill "butting in trying
to mislead the employees" and that Gill had been trying to run his business (all
of this in connection with union activities). Pluralizing, Ward here went be-
yond the Black incident; yet it does not appear that at this time Gill's talking
was excessive or that it interfered with his work
After the layoff of April 26, when May told Ward that he had not voted for the
Union, Ward replied that he was "going to work things out by the Golden
Rule," and would reemploy May as quickly as possible but that it "would look
bad to put (May) back to work" while men with greater seniority were still
off. In the context of the entire conversation, one must indeed strain to hold
that the portion last quoted constitutes interference, May himself thought that
Ward was trying to be fair with employees regardless of how they voted.
In a statement issued before the hearing, May declared that after he had said
that he had not voted for the Union, Ward replied, "I know you didn't, Slini.
Just stick with me." The first portion of Ward's reply indicates confidence in
May as much as actual knowledge-and the only surveillance alleged is in con-
nection with union meetings.
May did not at first recall the remainder of Ward's reply, but after his recol-
lection had been refreshed by examination of his statement, he testified that
Ward had said, "You stick with me and I'll stick with you. I'll put you back as
quick as possible." Clearly, the statement on direct examination after his recol-
lection had been refreshed went beyond the refresher Later, when confronted
50 Cf Superior Company, Inc., 94 NLRB 586, and cases cited
51 Although he testified that he exercised no control over production workers, Cummings
supervisory status is found in his querying Gill about the latter's debt, and more clearly
in P'eiguson's reference to him in the letter of March 13, 1951
51 These are considered in the order in which the testimony was offered
WARD BODY WORKS, INC. 705
with the difference between the two, he maintained that Ward had said only,
"stick with me," and had not promised, "I'll stick with you" The employee
declared his support, and the employer, without any promise, urged continuance.
I find here no interference within the meaning of the Act.
Early in June, Ward charged Bradshaw with tooting his horn too much about
the Union. This followed some talks which Bradshaw had with other employees
while he continued to do his work. Bradshaw testified that these talks did not
concern the Union, although he was outspoken in support of it during noontime
discussions . Ward's version was quite different, but it appears from it that in
telling Bradshaw to stop talking about him he pointed out that it wasn't "becom-
ing" to either of them or to the Union. Ward would have us believe that his
reference to the Union was wholly gratuitous and irrelevant. I credit Brad-
shaw's version that Ward warned him against talking about the Union while he
did his work, and that Ward thereby interfered with concerted activities.
I credit Ward's denial that he told Langley to be sure to be on hand for the
May election, to vote "No," and to tell J. C. Coker to do likewise. Nor do I find
violative Ward's reply that Langley "was trying to run over him" when asked
why he had fired Langley. At no time did it appear to me that the reference to
running over was connected with union activities; it was at least as referable to
Langley's failure to scoop the water out as directed. (There is in fact no proof
that Langley was "running over" Ward with union activities or that Ward
thought he was.) This conversation took place in or about August, when Lang-
ley, who had heard that Edward Stapleton was to be assigned Langley's Ward-
owned house, came to inquire about it
About September, Langley again called on Ward concerning the house (lie
had not yet moved), and was told that he could move into the smaller property,
also owned by Ward, which Stapleton was then occupying. I do not credit
Langley's testimony that he then asked Ward in what way he thought that
Langley was trying to run over him, and that Ward replied, "You signed the
union cards with the other low-down dirty rats. If you hadn't signed that union
card, you would be out there working today." I credit Ward's denial of the
statement and animus attributed to him, the latter hardly in keeping with the
acknowledged fact that Langley was permitted to occupy the housing mentioned,
where he remained virtually rent free until approximately the time of the hear-
ing. Ward's testimony stands uncontradicted : "Langley cursed me all over the
neighborhood because after I broke the ground, I didn't plant his corn in the
year 1950."
Charles A Boles, who signed a union card on April 15, testified that on April 26
Ward said to him, "As long as you stay with me, I will stay with you." But
Boles also testified that as far back as March 10, when there did not appear to
be any union activity, Ward had promised him a raise if he didn't quit. On
April 30, after Boles found that his timecard was not in the rack," Ward al-
legedly asked him whether he had signed a union card, and then charged him with
doublecrossing According to the witness, his approach to Ward on the 30th
was not in connection with the apparent layoff, but to "settle" his claim for the
overdue increase. Ward denied questioning Boles about the Union and making
antiunion statemonts lie testified that Boles was "traitorous . . . in working"
on Curtis' horses on company time.
I do not credit this testimony of Boles nor that concerning interrogation by
Ward on April 2.i with respect to employees' union activities or the union
meeting to he held that evening. During the latter conversation Ward allegedly
53 Bois is not included in the lists of those alleged to have been discriminated against.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spoke of "some weeding out in the shop," told Boles that he was going to
have Raymond White at the meeting to find out who the union members were
(Raymond White was among those laid off the following day, which fact itself
does not disprove Boles' testimony), and spoke of a "deal" to have Boles "work
on the boys at Vilonia," another of the Respondent's locations. The witness
testified that subsequently Ward told him again to work on the boys at Vilonia,
this when he was replaced by another employee and sent home, and after Ward
had called him a doublecrosser ! I credit Ward's denials.
J. C. Coker testified that on April 25, Curtis sent him to Ward's office, where
the latter told him among other things that he would stick with Coker if the
latter stuck with Ward, and that if the Union came in Coker would have to
pass a welder's test. Such remarks would have been respectively a promise of
benefit and unlawful threat. Ward denied that he had any conversation with
Coker on that day. Coker does not appear to have replied to the remarks which
he claims Ward made, yet the latter apparently did not "stick with" him as he
was laid off the following day. As for the reference to a welder's test, I again
credit Ward's denial of any conversation with Coker on that date. Ward ex-
plained remarks which he later made to A. A. Martin (anfra) concerning a
welder's test.
I further credit Ward's denial of J. C. Baker's testimony that during the argu-
ment which was started by his challenge to Ward and was terminated with his
discharge, Ward said, "You are doing splendid work," and then, charging him
with teasing his son, said, "I don't like it because you signed that old CIO Union
card."
As for Ward's reply to O. T. Baker's question concerning steady work that it
was "according to how (he) came out with the agencies on the outside," Ward
explained that he was referring to the RFC, from which he was trying to obtain
a loan, and the Army on the bus contract. While his words were ambiguous and
may have been construed to refer to the Board and the pending election, I do
not make a finding of threat in this connection. The reasonable intendment
of the statement does not indicate a threat or a promise.
On May 16, the day of his recall after he was laid off on April 26, Moore
was called into Ward's office, where the latter told him that he was losing money
keeping his men on throughout the year when the season runs for some 3
months only ; that he had been offered more for his steel than he could earn
building buses; and that if the employees didn't "keep on like (they were)
doing," he would replace them with machines. The quoted portion referred to
limitation of concerted activities as Ward explained that the Union could not
compel an increase in wages. Coupling these suggestions of curtailment of
employment with union activity constitutes a threat and interference with such
activity. I do not credit Ward's denial ; his "explanation" was quite irrelevant.
His subsequent promise that Moore would have a job as long as there was work
to do and he could do it does not erase the earlier threat, which concerned the
employees generally.
Moore further testified that he had at one time, "a good while before," seen
Reedy listed on the bulletin board as upholstery foreman. Although himself in
the upholstery department, Moore did not know whether that designation had
been rescinded. With that connection,64 he testified that the day before the
election, which was scheduled for September 19 but not held, Reedy told him,
64 Footnote 6, supra. There was a suggestion , but no proof, of authority in Moore's later
reference to the possibility of Reedy firing him. The latter testified that Carl White was
his foreman.
WARD BODY WORKS, INC. 707
"Tomorrow we will separate the sheep from the goats." I find no interference
here.
Robertson testified that on May 10 Thornton told him that those who went for
the Union would regret it; and that Ward then told him that he thought he
could put Robertson back to work in a couple of days with his seniority, con-
cluding with a veiled threat as he spoke of the Union and then remarked that
he carried an overload of 40 men. Since Robertson returned to work on that
day, I am unable, in the absence of explanation, to accept the alleged reference
to a possible return to work some days later. I credit Thornton's and Ward's
denial of these conversations.
Although I do not find that she represented her husband or was presenting
his views, Mrs. Ward's statement to the telephone operator early in April
1951 that she believed her husband would shut down the plant if it were organized
was a threat for which the Respondent is liable in view of her status as Ward's
wife, not to mention her activity in the business. The interference with organi-
zational activities was not lessened by the fact that, as he testified, Ward never
made such a statement.
I find no violation in Curtis' statement to Brannon on the morning of April 26
that the Company was too small for a union and that a union would break
Ward financially. This comment was no anticipatory refusal to deal with the
Union or indication of the futility of designating it; " nor is it to be regarded
as a threat to close the plant.
About a week after Leroy Hazel joined the Union in April 1951, Ward sent
for him and, after Hazel confirmed that he and his father had attended union
meetings, told him that he should not do it. This was interference within
the meaning of the Act, as was the implied threat which I find in Ward's
reference to the loss of $400 per man. As noted above, the implication is clear
when such a loss is mentioned in conjunction with discussion of a union, as
here. The interference was continued when, a week later, Ward asked Hazel
to talk to the men and try to influence them, a request which Hazel repeated
to a fellow employee although he continued to speak in the shop in support
of the Union. Hazel impressed me as credible, and I do not credit Ward's
denials of these conversations.
William R. Lester testified vaguely that about April 26 Ward called him into
his office, asked "something about what (he) thought about the union business,"
and then said something about possible improvement in working conditions and
increase in pay after things had straightened out. Ward denied that any
such conversation took place. Since interference is herein found to have
occurred on numerous occasions, I deem it unnecessary to resolve this conflict in
testimony.
Speights, who joined the Union about the time of the election in May, was
called into Ward's office for a series of conversations shortly thereafter. While
he testified concerning general references to losses sustained, it appears credibly,
despite Ward's denial, that in the third and last of these conversations Ward
stated that production could be obtained in 31/2 or 4 months with layoffs during
the remainder of the year ; and coupled this with the remark that the Union
could not compel an increase in wages. As above, I find that coupling the Union
and reference to the possibility of loss of employment, which Ward could impose,
is a threat and violates the Act. This threat was repeated when Thornton
pointed out to Padgett that they would work about half the time if they had the
" Cf. Salant & Salant, Incorporated, 92 NLRB 343; Charles R. Krsmm Lumber Company,
et at., 97 NLRB 1574.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. I credit Padgett's testimony over Thornton 's denial , the reason to be
found in the analysis of the latter's testimony , supra.
Oran Robinson testified that Ward told him a short time before the May
election that outside authorities had him tied down and that working conditions
would be better. It appears elsewhere that a wage stabilization specialist was
called in to discuss Government restrictions ; Robinson's testimony fails to indi-
cate any connection with union activities.
Robinson testified further that on July 23 Ward told the men in the finishing
shop that some of the employees had been asking for more money but he
couldn't give it to them because his attorney, who had had a fight with the
CIO before, told him that his "bodyguard, the CIO, had him tied down." In
the light of Ward's denial, it appears that Robinson was here confusing the ref-
erence to the tie-down effect of outside authorities, noted immediately above,
with Ward's mention of his attorney and the CIO While Robinson was a re-
luctant and unreliable witness for General Counsel, none of the other finishing
shop employees corroborated this testimony concerning the CIO tying Ward
down.
I do not credit Hartzell's testimony, denied by Ward, that the latter said, after
Hartzell voluntered that lie was not a union man, that he was in favor of the
Union but the men were trying to run it into the ground, and he might have to
lay off 1 or 2 of those who were doing that and not doing satisfactory work.
Gaston H. Berry testified that sometime before the April 26 layoff Ward called
him into his office, said, "If you will stick with me. I will stick with you," and
asked him to talk to Jack Fowler, another employee. Berry stated on the stand
that he figured that Ward wanted him to stick with that job, and that he did not
know what Ward wanted him to talk about with Fowler. I do not believe that
Berry, a reluctant witness , was truthful, but that impression does not warrant
a finding that Ward's statements constituted interference. General Counsel has
not indicated or argued any inference to be properly drawn from this testimony.
Roy Johnson testified variously that a short time before or after the election
of May 18, Thornton told him to make up his mind to forget the Union and
work for Ward or they would have to get rid of him. Thornton denied any such
conversation with Johnson. When Johnson undertook to repeat this threat, he
described it as including all who were working for the Union. He testified that he
had been distributing union cards on nonworking time. Ward spoke to him
about these activities the following day, but testified that he had caught Johnson
passing out cards during working time and leaving his work. As noted in con-
nection with his alleged discharge, supra, I did not find Johnson a credible wit-
ness I find that he was not threatened for union activities.
Maynard testified that shortly after his return on May 31, Floyd Berry said
to him that if he told Ward to forget about his being for the Union, and shook
hands with him, Ward would forget, and that things would be as they had been
before the Union's advent. Berry demurred. Whether or not there be any
question of interference here, Berry's description of this conversation is more
reasonable and credible; he told Maynard that "the whole bunch should apolo-
gize for standing around on his time and talking union " I credit Berry's testi-
mony that he made a similar statement to Maynard on April 27, the latter not
having been laid off on the previous day.
Shortly after Ma}nard's return on May 31, when Berry told him that if certain
dies could be used, only one hammer operator would be needed, Berry, according
to Maynard, added that if he "would forget this union business, (he) would be
that main " Berry testified that, on the contrary, when Maynard asked which
hammer operator would be laid off, lie replied that lie didn't know but that Jimmy
WARD BODY WORKS, INC. 709
Stapleton had greater seniority. I do not credit Maynard's testimony that Berry,
when he asked him to forget the union business , said that Maynard did most of
the work and added, "I told Mr. Ward and Mr. Ward knows that you do." I do
not believe that Berry made the promise alleged , and therefore find no interference
in his remarks.
A. A Martin testified that for about 2 weeks prior to the May election, Ward
daily called him into his office, and in the course of these conversations told him
that he owed $125,000, he was paying the Government scale, and the Union, if it
came in, could not make him pay any more. The last statement, as an indication
of the futility of dealing with the Union, constitutes interference.66 In that
context, I find further interference in Ward's suggestion that they "be together"
on the election. I credit Martin's testimony although Ward denied making the
earlier remarks and did not remember the last. Not denying the series of visits,
Ward did not undertake to explain why he sent for Martin or what was discussed.
Whether or not Martin told Ward that he had signed a union card, and Ward
replied, "I know it." I do not find that the latter statement, as testified to with-
cut explanation of its setting or significance, implied surveillance or knowledge
of union activities so as to constitute interference.
I believe that Martin erred in testifying that Ward told him that they would
have to take an examination if the Union came in. Ward's explanation of the
reference to an examination as having been made later in connection with the
army inspection and dissatisfaction with the work is plausible, and I credit it.
A week or two before the May election. Ward called R. F Martin into his office
and told him that he was broke, couldn't pay any more, and was going to improve
working conditions. I credit his testimony in the face of Ward's denial. Al-
though the Union wasn't here mentioned, the proximity of the election warrants a
finding of interference because of the indication that it would be futile to
engage in concerted activities in the light of the Respondent's financial condition.
Further, the preelection promise of improved conditions constituted unlawful
interference.
Callihan offered some cloak and dagger testimony concerning Ward's reference
to his competitors and blueprints of a new plant which "they were after." In
this connection he allegedly spoke also of the men sticking with him, and the
result "if those fellows got in the plant down here." To find that these conver-
sations were not connected with union activities might suggest only an omission ;
in fact they referred to business competitors. I find interference, however, in
Leroy Thomas' statement to Callihan that if the Union came in, employees would
have to take a physical test and a job test; and in his suggestion that it was
pointless to support the Union since, if even two employees were against it, it
never would go in."
Brannon testified that on April 25, 1951, Ward told him "Those people have
come down from the North and taken the South over, and it is a thorn in my
back" ; and that he also promised him a 10-cent increase, effective that day,
but did not give it to him. I accept Ward's denial of any such conversation.
Foreman White testified that 4 or 5 days before April 26, when he first heard
of the intention to unionize the Respondent, he questioned Edward W. Ward,
a welder, about intention to hold an election and the report that every man had
signed up. Whether or not there be a threat is material under the statute only
in connection with the expression of views, argument, or opinion. But the Act
does not authorize inquiries ; and questions are not expressions of opinion On
the contrary, they look to information, expressions, and commitments by em-
16 I bid
257965-54-vol 103 --46
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees who as individuals lack the power of the employer and are not on an
equal footing with him ; such questions, emphasizing the disparity in bargaining
power, tend to that industrial strife or unrest which it is the policy of the Act
to eliminate. Such interrogation constitutes interference in violation of the Act.
Willard Glover testified that on May 8, 1951, while he was laid off, Milam,
Thornton, and Homer Black (the latter had come along to point the way)
called on him at home to ask him to return to work. They made it plain that
they wanted him back in any case. I find no promise of benefit even though
they told" him that working conditions would be better "since they had got rid
of Curtis." sa Nor do I find violative Thornton's alleged statement that the plant
"would be in a bigger mess than it had ever been if it did go" union `9
On August 2, 1951, Ward, in a speech to the employees, undertook to reply to
a union query concerning his failure to grant a planned increase. He explained
that the election and the unfair labor practice charges arose before he was ready
to grant the increase, and that when he asked the Board field representative for
permission to proceed with it he was told that he would have to suffer the con-
sequences. Provocation is not to be charged to Ward; his statement was an
understandable attempt to reply to the Union's challenge. It was not made "for
the purpose" B0 of influencing the employees . The actual withholding of the in-
crease and Ward's remarks in that connection were justified when it was clear
that the Respondent would make any grant at its own peril81
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in
connection with the operations described in section I, above, have a close, inti-
mate, 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.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, I shall recommend that it
cease and desist therefrom and take certain affirmative action in order to effec-
tuate the policies of the Act.
It has been found that the Respondent, by discharging and refusing to re-
instate William L. Bradshaw and Leo W. Stewart, and by failing to recall Roy
L. Stevenson, discriminated against them in respect to their hire and tenure of
employment in violation of Section 8 (a) (3) of the Act. I shall therefore recom-
mend that the Respondent offer to said employees immediate reinstatement to
their former or substantially equivalent positions,62 without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of
pay they may have suffered by reason of the discriminatory action aforemen-
tioned by payment to each of them of a sum of money equal to that which he
67 Denied by Milam
58 Glover testified that resentment was widespread under Curtis
69 It does not appear that the reason for Glover's failure to return to work immediately
after this visit was that they "seemed to think (he) was for the union" ; or that his return
on May 14 was hastened as an inducement to him.
60 Hudson Hosiery Company, 72 NLRB 1434.
61 Standard Cost Products, Inc., 99 NLRB 899. Cf. Kansas -Nebraska Natural Gas Com-
pany, Inc, 99 NLRB 1423.
61 The Chase National Bank of the City of New York, San Juan, Puerto Rico , Blanch,
65 NLRB 827.
WARD BODY WORKS, INC. 711
would normally have earned less his net earnings,°3 which sum shall be com-
puted 64 on a quarterly basis during the period from the discriminatory discharge
or failure to recall to the date of a proper offer of reinstatement. It is also rec-
ommended that the Board order the Respondent to make available to it upon
request payroll and other records to facilitate the checking of the amount of
back pay due '
It has been further found that the Respondent, by interrogation concerning
union affiliations, coercive attempts to persuade employees to cease union activi-
ties and to discourage other employees from such activities, threats on account
of union activities, sponsoring and permitting circulation of petitions which re-
strained union activities, and statements and conversations which otherwise
interfered with union activities, interfered with, restrained, and coerced its em-
ployees in violation of Section 8 (a) (1) of the Act. I shall therefore further
recommend that the Respondent cease and desist therefrom.
The unfair labor practices found herein indicate a purpose to limit the lawful
concerted activities of the Respondent's employees. Such purpose is related to
other unfair labor practices, and it is found that the danger of their commission
is reasonably to be apprehended. I shall therefore recommend a broad cease-and-
desist order, prohibiting infringement in any manner upon the rights guaranteed
in Section 7 of the Act.
For the reasons stated in the subsections entitled "The alleged multiple viola-
tions of Section 8 (a) (3)" and "The alleged individual violations of Section 8
(a) (3)," I shall recommend that the complaint be dismissed except to the extent
that violations have hereinabove been found, insofar as it alleges the discrimina-
tory layoff, failure to recall, or discharge of the employees listed in Appendixes
A, B, and C attached hereto, and refusal to hire Charles C. Hartzell.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft, Agricultural Implement
Workers of America, CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of William
L. Bradshaw, Leo W. Stewart, and Roy L. Stevenson. thereby discouraging mem-
bership in the Union, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and by interrogation, coercion, threats, petitions,
and other statements and conversations, thereby interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed in Section 7 of
the Act, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
5. Except as hereinabove concluded with respect to Bradshaw, Stewart, and
Stevenson, the Respondent has not engaged in unfair labor practices within the
meaning of the Act by laying off, failing to recall, or discharging the employees
listed in Appendixes A, B, and C attached hereto, or refusing to hire Charles C.
Hartzell.
[Recommendations omitted from publication in this volume.]
m Crossett Lumber Company, S NLRB 440. See also Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
" F W Woolworth Company, 90 NLRB 289.
65 Ibid.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
(Employees laid off April 26 or 30, 1951)
Atterberry, David E.
Baker, O. T.
Baker, T. V.
Bannister, Dennis W.
Bolton, C. L., Jr.
Bradshaw, W. L.
Brannon, L. W.
Brazear, Billy
Brazear, R. D.
Callihan, Harry R.
Coker, James C.
Coker, Jerrell J.
Cummings, Odie
Fortner, Buddy R.
Fowler, Jack
Freeman, J. C.
Gill, L. R.
Glover, Willard
Graham, D. B.
Hall, J. H.
Harrington, Wesley
Hartsfield, A. S.
Hazel, L. F.
Henderson, C. K.
Jeffries, R. W.
Johnson, John W.
Johnson, Roy A.
Johnson, T. A.
Langford, A. H.
Langley, Farris W.
Langley, Joe
Leslie, R. F.
McGinty, C. D.
McGinty, James R
McGinty, L. J.
Marshall, Glen D.
May, Dock L.
May, John D.
Maynard, Clarence
Moore, E. M.
Murdaugh, Edward
Murdaugh, George W., Jr.
Naylor, Earl T.
Neal, 0 C.
Oshurn, Carlee
Padgett, J. L.
Pate, Archie
Poe, James A.
Quattlebaum, R B.
Reece, Jessie
Robertson, Herman E.
Robinson, O. G.
Sandeford, J. C.
Sims, Lee F.
Sisson, Frank
Stewart, L. W.
Ward, Edward W.
Wharton, Jessie C.
White, Carrell E.
White, Raymond
Woodard, Wilton
Appendix B
(Employees alleged to have been discriminated against by failure to recall
after April 2, 1952)
Aubrey Alonzo Martin Wesley Harrington
Romi Frank Martin *B B. Rorie
Roy L. Stevenson *Marion Padgett
Clifford S. Hall *Fred Gorman
(Employees alleged to have
J C. Baker, Jr.
O. T. Baker
W. L. Bradshaw
L. R. Gill
Leroy Hazel
Joe C. Langley
Aubrey Alonzo Martin
Appendix C
been discharged and refused reinstatement)
Dock L. May
Clarence Maynard
Roy L. Stevenson
Leo W. Stewart
Harold W. Wharton
Roy A. Johnson
*Allegation dismissed on motion of General Counsel