West Texas Equipment Co.

National Labor Relations Board - Board Decisions

Jun 25, 1963

143 N.L.R.B. 39 (N.L.R.B. 1963)

WEST TEXAS EQUIPMENT COMPANY 39
APPENDIX
NOTICE TO ALL OUR MEMBERS , OFFICERS , AND REPRESENTATIVES AND TO ALL
EMPLOYEES OF VOGTLI & SONS CONSTRUCTION CORP.
As recommended by a Trial Examiner of the National Labor Relations Board and
in order to conduct the business of Local 17 as required by the National Labor
Relations Act, we notify you that:
WE WILL NOT try to cause Vogtli & Sons Construction Corp . to refuse to
hire any worker because he does not have clearance to the job from Local 17
or has not been referred by us.
WE WILL NOT try to cause Vogtli & Sons Construction Corp. to refuse to hire
any worker because he has engaged in lawful union activities which do not
meet with our approval.
WE WILL NOT try to cause Vogtli & Sons Construction Corp . to discriminate
against any employee or applicant for employment in any way that violates
the National Labor Relations Act.
WE WILL pay Harold W. Regenauer for the time he lost from work with
Vogtli & Sons Construction Corp because of our having caused that Company
not to hire him, and we will notify Regenauer and that Company that we do
not object to Regenauer 's working for any employer.
LOCAL 17 , INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days after its date, and must not be altered,
defaced, or covered by any other material.
Employees may communicate with the Board 's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New York , 14202, Telephone No.
TL 6-1782, if they have any question concerning this notice or compliance with its
provisions.
West Texas Equipment Company and International Union of
Operating Engineers , AFL-CIO, Local 191. Case No. 16-CA-
1729. June 25, 1963
DECISION AND ORDER
On April 5, 1963, Trial Examiner W. Edwin Youngblood 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 at-
tached Intermediate Report. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices, and recommended that the complaint be dismissed with respect
to such allegations. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and it supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
143 NLRB No. 7.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the General Counsel's exceptions and brief, and
the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
' Member Brown would find that Tifton Holcomb was discriminatorily discharged in
violation of Section 8(a) (3) as alleged . He would base this conclusion on the fact that
Holcomb was retained for 7 months despite his allegedly poor work , was never warned
that his work performance might subject him to discharge ; was known by his supervisor,
Peek, to be the only union adherent In his department ; and In a context of interrogation
and threats found coercive and violative of Section 8(a) (1), Holcomb was discharged a
week after Respondent learned of his union activity and a few days after Respondent
questioned him about his feelings toward the Union.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed September 21, 1962, by International Union of Operating
Engineers, AFL-CIO, Local 191 (herein called the Union) a complaint was issued
against Respondent on November 6, 1962,1 alleging violations of Section 8(a) (1)
and (3) of the Act, by interrogating employees concerning their union activities,
threatening employees with discharge or other reprisals if the Union did not win
the election, threatening employees with loss of economic benefits and other benefits
unless they refrained from supporting the Union, and discharging Tifton W. Holcomb
because of his union activities. The complaint was amended at the hearing to
allege that Respondent violated Section 8(a) (1) by unilaterally granting wage in-
creases to two of its employees on or about November 19. Respondent denies
it has committed the alleged violations. All parties were represented at the hear-
ing which was held before Trial Examiner W. Edwin Youngblood on January 16,
1963, at Amarillo, Texas. All parties were afforded an opportunity to be heard,
make oral argument, and file briefs. The General Counsel and Respondent filed
briefs which have been duly considered. Disposition of Respondent's motion to
dismiss the complaint, as amended, which was made at the hearing and upon which
ruling was reserved, is disposed of in accordance with the findings herein.
Upon the entire record, and from my observation of the witnesses, including
their demeanor while testifying, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Texas corporation, has places of business at Lubbock and Amarillo,
Texas, where it is engaged in selling and servicing heavy construction equipment.
Only the Amarillo place of business is involved herein.
In 1961, a representative period, Respondent purchased and received goods
valued in excess of $50,000 directly from points in other States. Respondent
admits, and I find, that it is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent contends that Local 191 is not a labor organization as defined in
the Act. A representative of Local 191 credibly testified that it has no constitution
or bylaws, but that employees of employers participate in its activities, its pur-
pose is to represent employees, and it has contracts with employers. I find Local
' Unless otherwise noted , all dates mentioned are in 1962.
WEST TEXAS EQUIPMENT COMPANY 41
191 of International Union of Operating Engineers is a labor organization as defined
in the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In August the Union began a campaign to organize the employees of Respondent.
At least two union meetings were held, including a meeting on September 9. Pur-
suant to the suggestion of a representative of the Union, a group of four employees
met the following day with Wesley T. Morgan, Jr., Respondent's service manager,
to inform him of their union activities. Morgan's status as a supervisor as defined
in the Act is admitted. The employees present were Curtis Brinkley, Forrest
Wright, Jerry Geisert, and Tifton Holcomb. There is no serious dispute as to the
substance of the conversation which ensued in Morgan's office. Geisert, who acted
as spokesman for the employees, credibly testified that he told Morgan they had
attended a union meeting the previous day and had decided to notify a supervisor
so that he could notify management. At that point, according to Geisert, Morgan's
face got "pretty red, and he started stomping the floor a little," and said that there
was not anything he could do about it but "be sure you get them all, or look out."
Geisert told Morgan that they understood they had to have 51 percent and
Morgan replied, "Well, you want to be sure and get that 51 percent, or look out."
Holcomb and Geisert were then dismissed by Morgan and left the room. Brinkley
credibly testified substantially in accordance with Geisert's version of the conversa-
tion. According to Brinkley's credible testimony, after Geisert advised Morgan
of their union activities Morgan said, "Well, if it goes union there ain't nothing I
could do about it," but "If it don't, by God, look out, and I mean by God look
out." Also, Morgan looked around and said, "I know just who came in here, too." 3
Morgan's testimony does not differ substantially from that of Geisert or Brinkley;
in fact, he admitted that he told the employees after it was brought out the Union
had to have 51 percent, "Well, by God, you'd better have."
It is clear and I find that Morgan's statements to these employees constituted
implied threats that if the Union was not designated as the employees' representa-
tive Respondent would take action adverse to the interests of those employees who
had supported the Union, and Respondent thereby violated Section 8(a)(1). Ac-
cordingly, I reject Respondent's contention that Morgan's statements were privileged
and not violative of the Act.
On September 13 about 9 a.m., employee Blessen encountered Leroy M. Rickman,
Respondent's office and credit manager, on his way from the front office to the shop.
Rickman is admittedly a supervisor as defined in the Act. Rickman asked Blessen
if he had heard what had happened, to which Blessen replied that he had heard
that "they brought the Union in on us." Rickman then said, "Well, I guess you know
that we could lose some benefits out here?" to which Blessen replied, "We could
probably get cut to 40 hours and in time of a slack period we could be laid off."
Further Rickman stated, "We have always in the past worked on our used equipment
when there was a slack period ." and that "could be stopped." 4
I find Rickman's statements to Blessen constituted clearly expressed threats that
employees' hours might be cut and that contrary to past practice they might not be
permitted to work on used equipment in slack periods, if the Union were successful.
Accordingly I reject Respondent's contention made in its brief that Rickman's
statements were merely his opinions and not violative of the Act. I find Respondent
violated Section 8(a)(1) by Rickman's statements. Cf. "M" System, Inc., Mobile
Home Division, Mid-States Corp., 118 NLRB 502, 509, 510.
2 Cf. Mark J Gerry, Inc., d/b/a Dove Manufacturing Company, 128 NLRB 778.
s It is not without significance that Morgan, according to Brinkley's credible and un-
contradicted testimony, asked Brinkley when he was hired some 5 years before the hearing
If he had ever belonged to a union and when Brinkley admitted that he had Morgan told
him that if .he ever started a union at Respondent's plant, he (Morgan) would discharge
him.
* Based on the credited testimony of Blessen. Rickman's version was substantially the
same as Blessen's but he asserted Blessen initiated the conversation and that his state-
ments were simply answers to questions put by Blessen. Blessen has been an employee of
Respondent for about 6 years and was still so employed at the time of hearing On cross-
examination Blessen was very cooperative with Respondent's counsel in answering ques-
tions and this plus his attitude and manner on the stand convinced me that he would say
nothing detrimental to Respondent if it were not so. Moreover, his version when con-
sidered in context with other circumstances detailed herein has the ring of truth. There-
fore I have rejected Rickman's version of the conversation
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the conversation with Rickman just related and on the same day, Bles-
sen spoke with Morgan out in the yard. According to Blessen's credited and un-
contradicted testimony, Morgan asked him what he thought about the Union, to
which Blessen replied that it had good and bad points. Morgan then stated, "Well,
I guess we could lose some of our benefits," adding that they could lose their
retirement.5
I reject Respondent's contention that Morgan's statement was merely an expression
of opinion and find it constituted a threat of loss of retirement benefits if the Union
was successful, and therefore is violative of Section 8(a)(1) 6
During the week of September 9, Charlie G. Peek, Respondent's parts manager
and admittedly a supervisor as defined in the Act, talked individually with a number
of employees in the parts department about the Union. Peek testified that he began
these conversations by asking the employee, "What do you think of that union
talk?" or "Wonder what all this talk is going to lead to" or words to that effect.
Further, Peek stated that he had these conversations with Tifton Holcomb and
employees Caldwell, Cooper, Fristch, and Pigg. The Board has held such systematic
inquiries interfered with, restrained, and coerced employees in their right to engage
in or refrain from engaging in union activites, although the interrogations did not
contain threats of reprisals. Charlotte Union Bus Station, Inc., et al., 135 NLRB
228. Accordingly, I reject Respondent's contention that the interrogation was lawful
because unaccompanied by threats or coercion and find Respondent thereby violated
Section 8(a)(1).
On September 13 Peek, as noted above, questioned Holcomb regarding the Union.
Holcomb replied that "he felt it was a good thing." During this conversation Peek,
after referring to the advantages and disadvantages of the Union, stated that the
employees "would possibly lose" their "48-hour week, and go back to 40-hours a
week." 7 In the context in which the conversation occurred I infer and find that
Peek's reference to loss of overtime meant in the event the Union won. I therefore
find Respondent by Peek's statement threatening the loss of overtime violated Sec-
tion 8(a)(1).
The record establishes that employees Pigg and Fristch were granted wage in-
creases on November 19. Pigg and Fristch were employed on August 20. Thus,
these employees received raises after about 3 months of employment.
General Counsel contends Respondent's normal practice is to award increases
after 6 months and since these increases came after only 3 months, this deviation
plus the fact they came after knowledge of union activity warrant the inference that
they were made for the purpose of deterring union activities. In support of his con-
tention regarding Respondent's practice, General Counsel points to the testimony
of Holcomb and Cook. Holcomb testified he was told by Peek when hired that
normally new employees were given raises after 6 months; Cook testified in effect
that it was common knowledge that employees did not receive a raise until after
6 months.
On the other hand, Respondent, although admitting the raises were granted with-
out consulting the Union, contends it has a long-established custom of awarding
wage increases when they are earned. Peek testified that the company policy regard-
ing raises for employees in the trial period was to leave it up to the supervisor
to determine when the raise was to be given. Peek further testified he had given
raises within 2, 3, and 4 months of the starting time of a new employee. It is sig-
nificant in that regard that Cook who was employed December 7, 1961, received his
first raise on March 19. Thus Cook received a raise about 3 months after com-
mencing his employment. In these circumstances, it seems clear and I find that
Respondent has a policy of awarding merit raises as they are earned. So far as the
record shows, these raises were awarded without any comment whatsoever relating
to the Union. I am persuaded these raises were awarded in accordance with Re-
spondent's customary practice and were unrelated to union activities. In my opinion,
General Counsel has failed to sustain the burden of proving the wage increases were
granted to discourage employees from supporting the Union. Cf. Hyman and Israel
Burwick, d/b/a Carl Burwick and Company, 115 NLRB 629, 636.
B. The alleged discriminatory discharge of Tifton Holcomb
Holcomb was employed by Respondent on February 9 as a shipping clerk in
the parts department at an hourly rate of $1.45. As referred to above, Holcomb
B According to General Counsel's Exhibit No. 2, Respondent has a "Retirement Trust
for Employees."
e Cf. "M" System, Inc., supra.
Based on the uncontradieted and credited testimony of Holcomb.
WEST TEXAS EQUIPMENT COMPANY 43
was in the group of employees who met with Morgan on September 10. In addi-
tion Holcomb attended two union meetings and signed a union card.
On September 11, according to Holcomb, he overheard Rickman, while talking
with Supervisors Sharp and Morgan, say that "if it was left up to him he'd fire
every damn one of them without giving them a reason." 8 Rickman in effect denied
making the statement attributed to him by Holcomb and testified that he said, "It's
a good thing that Mr. Roots isn't here, or he would probably fire the whole damn
bunch." 9 I credit Rickman's version because I do not consider it likely that he
would admit making a statement detrimental to his employer's interest unless he
in fact made the statement.
On September 13, as found above, Holcomb was asked by Peek about the Union
and Holcomb told Peek he "felt it was a good thing." In addition, as found above,
Peek threatened Holcomb with loss of overtime if the Union were successful. It
is clear and I find that Peek in this conversation was seeking to discourage Holcomb
from supporting the Union.10 Holcomb testified that during this conversation of
September 13, he asked Peek about a raise and Peek replied "he had gone before
Mr. Roots for three of us raises, and that one had gotten it, and that two of us were
turned down." ii
Holcomb credibly and without contradiction testified that he had not received
any warnings of possible discharge during his employment nor received any written
reprimand. Holcomb was discharged on September 17 by Peek.
General Counsel contends the underlying motivation for Holcomb's discharge
was his union activity. Respondent contends Holcomb was discharged because
he was an unsatisfactory employee. We turn now to a consideration of the testi-
mony which tends to support Respondent's contention.
Holcomb worked under the supervision of Peek. Peek testified that he had
observed that Holcomb was slow in his work and about 6 weeks or 2 months after
Holcomb was hired he talked with him in an effort to find out "what was hold-
ing him back." During this conversation, he told Holcomb his work was not satis-
factory and thereafter discussed his work with him on the average of about once
a month. Peek testified that after he talked with Holcomb "he would show im-
provement for 2 or 3 days" but then "he'd be back in the same rut again, slow
down." In addition, Peek testified that these conversations would always end with
a discussion of Holcomb's family troubles.i2
According to Peek, he decided in July that Holcomb would never make a "suit-
able" parts man and should be discharged. Peek testified he reached this decision
because Holcomb was slow in his work and lacked initiative. Peek further testi-
fied Holcomb did not "jump in and help" get the job done, adding "he'd just stand
there and look at things." Peek met with Roots in the middle of July and there
was, a general review of the operations in the parts department. Peek testified
that during this meeting Roots wanted to know what he was going to do about
Holcomb and Peek told him his "mind was made up to let him [Holcomb] go as
soon as vacations were over, and a replacement was hired." According to Peek,
the decision was reached at this time that he and Roots would meet again on
September 15 to consult further about the termination of Holcomb.
Peek testified that due to people being out on vacation and the press of work,
he was unable to call the employment agency for a replacement for Holcomb until
the latter part of July. On August 20, a replacement for Holcomb, Wayne Pigg,
was hired.
Dale Cook, a former employee of Respondent, credibly testified that he worked
as a shipping and receiving clerk with Holcomb and that he told Peek several
times, including an occasion about July 1, that Holcomb was not doing as much
work as he should, and "was sitting around quite a bit, and not helping out."
8The General Counsel does not contend this to be a violation of Section 8(a) (1)
apparently because there is no evidence Rickman intended the remark to be overheard by
an employee or knew that it was.
9 Roots is Respondent 's president.
"In his brief , on page 4, General Counsel states that Peek told Holcomb he had not
been concentrating on his work "but recently had been doing better," and further states
that Peek told Holcomb he would speak to Roots about a raise for him after Roots re-
turned on September 15. I have diligently searched the record and have been unable
to find these statements therein.
11 For reasons stated herein I do not credit this testimony insofar as it implied Peek
had recommended Holcomb for a raise.
12 Holcomb was divorced , and his former wife, who had custody of their child , refused to
let Holcomb visit the child. In addition, Holcomb's mother had recently died.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peek replied that he knew Holcomb was not working as much as he should and
he was considering steps to correct the situation.13
Rickman credibly testified that Peek told him in August that Holcomb had not
proved to be a satisfactory employee; that when he (Peek) cautioned him about
his work, he would improve temporarily and then fall back in a slump. Further,
that he (Peek) had "just about given up on him and felt like he should replace
him."
Peek testified that vacations were over by September 1 and by that date he had
decided Pigg could take over Holcomb's duties. In addition, Peek testified that
he was unable to meet with Roots on September 15 as previously agreed upon be-
cause Roots was out of town. Peek testified, however, that he met with Roots
when he returned from out of town which was Monday, September 17. Accord-
ing to Peek, he told Roots "what [hel was confronted with and asked what should
be done, because [he] had been told that we could not fire anyone, or lay anyone
off, or anything, since we had notification of the Union." Peek testified that since
he planned to lay someone off, he asked for advice. Peek further testified that
Roots told him he would get advice on it and let him know.
According to Peek, the following events took place on the afternoon of Septem-
ber 17: Peek went out to the shipping department and got Holcomb and took him
to an office. There he explained to Holcomb that he had been warned on "nu-
merous occasions" that his work was not satisfactory, which Holcomb admitted
was true. Peek advised Holcomb that Pigg was making "a good hand" and could
"take over" Holcomb's duties. Holcomb commented that he had never been fired
before and was sorry that it happened. In addition, Holcomb said "he kind of
realized that he hadn't worked like he should have." Holcomb inquired if the
discharge had anything to do with the Union and Peek replied "definitely not," add-
ing that the decision had been made the previous July "as to the steps that we were
taking at the present time."
Peek testified, as stated above, that he normally gave a new employee who was
satisfactory a raise within 2 to 4 months of his employment and that Holcomb
did not receive a raise. Further, that he had never given any written reprimands
to employees. In addition, Peek testified that there were three shipping clerks after
Holcomb was employed and as of the time of the hearing Respondent had three
shipping clerks in its employ.
Holcomb did not dispute Peek's testimony; in fact much of it was admitted by
Holcomb. Holcomb admitted that shortly after he went to work for Respondent,
Peek told him that he was not concentrating on his work. At that time Holcomb
told Peek of his family troubles. Holcomb admitted further that Peek talked to
him "at least twice" about his failure to concentrate on his job. In addition,
Holcomb admitted acknowledging during the discharge interview that his work was
"at times" unsatisfactory. Finally, Holcomb admitted Peek's version of the dis-
charge conversation was substantially correct.
The threshold issue, in my opinion, is Peek's credibility. We turn now to a con-
sideration of this issue. Peek's testimony was given in a convincing manner and
was not shaken by cross-examination. It was uncontradicted; indeed, as noted above,
much of it is admitted by Holcomb. In addition Peek's testimony regarding his
decision in July that Holcomb was an unsatisfactory employee who should be re-
placed is corroborated in important respects by other witnesses. For example, there
is Cook's credible testimony of his conversations with Peek, and particularly the
conversation in July when Peek stated that he knew Holcomb was not working as
he should and was taking steps to correct the situation. In addition there is Rick-
man's credible testimony that Peek advised him in August (which was before com-
pany knowledge of the union activities was shown to exist) that Holcomb was not
a satisfactory employee and he (Peek) felt he should be replaced. Moreover, Peek's
testimony that Pigg was hired to replace Holcomb is substantiated by the fact that the
complement of three shipping clerks was the same at the time of the hearing as it
was when Pigg was hired.
General Counsel contends, however, that there are certain discrepancies in Peek's
testimony: (1) Peek attempted to discourage Holcomb's union activity in the con-
versation of September 13 which was long after the July decision to discharge
Holcomb General Counsel raises the question of why Peek would seek to dis-
courage Holcomb's union activity when he knew Holcomb was to be discharged.
Peek's testimony satisfactorily explains this point; the meeting with Roots scheduled
for September 15 had not yet been held. Moreover, as stated above, Peek under-
19 Cook left the employ of Respondent apparently because he had disobeyed an order of
Peek and quit rather than waiting to see if he would be fired.
WEST TEXAS EQUIPMENT COMPANY 45
stood that supervisors were not to take any adverse personnel action since Respond-
ent had been notified of the union activities of its employees. Therefore, when Peek
talked to Holcomb on September 13, he did not know whether Holcomb's discharge
could be effectuated as planned. (2) General Counsel contends that Peek's testi-
mony that he and Roots arranged to meet on September 15 to discuss Holcomb's dis-
charge is incredible. In support of this contention General Counsel argues that Peek
had the authority to discharge employees because he discharged Holcomb. This
contention is rejected because it is clear that Peek did not discharge Holcomb until
after he had consulted with and obtained the approval of Roots. Moreover, even
assuming that Peek had the authority to discharge employees, the fact that he con-
sulted with the president of the Company about discharging an employee would
not be incredible.14
Accordingly, under all the foregoing circumstances I credit Peek's testimony.
Therefore, I find that Peek and Roots agreed in July that Holcomb would be dis-
charged after the vacation period was over, a suitable replacement hired and trained.
and they met again on September 15. None of these considerations, so far as the
record establishes, were related to union activities.
It will be recalled that Holcomb testified in effect that Peek told him he (Peek)
had recommended to Roots that Holcomb be given a raise. Although Peek did not
directly contradict this testimony, it is inherently improbable that Peek would have
done so for it is clear from Peek's credited testimony that within a month or two
from Holcomb's employment Peek considered Holcomb's work unsatisfactory and
thereafter did not change his mind. For Peek to have recommended a raise for
Holcomb under these circumstances would have been illogical, and it would have
been just as illogical for Peek to tell Holcomb on September 13 that he had tried
to get him a raise. On the other hand Holcomb's testimony on cross-examination
was unimpressive and self-contradictory. For example, he testified that his personal
problems never occupied his attention while he was working and yet a few short ques-
tions later he admitted that he had discussed his personal problems with Peek
"possibly" in explanation of his lack of concentration on the job. In view of the
foregoing, I canot credit Holcomb's testimony on this point.
I am unable to atach any significance to the admitted failure of Peek to warn
Holcomb of possible discharge if he did not improve. Not all supervisors follow
this practice and after July it would have been illogical for Peek to do so because
he had already decided on Holcomb's discharge. Nor can I give any weight to the
absence of written reprimands in view of Peek's testimony that he did not follow the
practice of giving written warnings.
Therefore, under all the circumstances, and although Respondent's hostility to the
Union is clearly shown by its interrogation of and threats to employees regarding
union activity, although Respondent's knowledge of Holcomb's union activity is
clear and although his discharge was effectuated shortly after his union activities
became known to Respondent, I am constrained to conclude that General Counsel
has not sustained his burden of proof by a preponderance of evidence. The fore-
going suspicious circumstances do not counterbalance Peek's credited and uncon-
tradicted testimony that it was decided in July that Holcomb was unsatisfactory and
should be terminated. I do not think the advent of the Union, after the decision to
discharge Holcomb was made and was in the process of being effectuated, imposed
an obligation on Respondent to revoke this decision, discharge Pigg, and continue
Holcomb in their employment. This conclusion is further buttressed by Holcomb's
own testimony admitting unsatisfactory work. I cannot find Respondent's asserted
reason for the discharge to be pretextuous in these circumstances. Accordingly, I
shall recommend dismissal of the complaint insofar as it alleges Respondent violated
Section 8(a) (3) of the Act by the discharge of Holcomb.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities found to be unfair labor practices in section III, above,
occurring in connection with the operations of Respondent described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
11 Nor does the fact that Peek did not recommend Holcomb's discharge until about
5 months after he was hired detract from his credibility. Although he testified a shipping
clerk could be trained in a week or two, Peek did not testify he recommended Holcomb's
discharge because he could not do the work, rather he testified he recommended Holcomb's
discharge because he did not do the work.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
In view of my findings that the Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights under the Act, I shall recommend
that it cease and desist therefrom and post an appropriate notice.
Upon the basis of the foregoing findings of fact and upon the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
4. Respondent has not violated the Act by granting wage increases to certain
of its employees on November 19.
5. Respondent has not violated Section 8 (a) (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it
is recommended that Respondent West Texas Equipment Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning union activities in a manner constitut-
ing interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(b) Threatening to lay off its employees in slack periods, eliminate overtime
work and retirement benefits, or threatening to discriminate against its employees
in any other manner because of their union or concerted activities.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post in conspicuous places at its place of business in Amarillo, Texas, in-
cluding all places where notices to employees customarily are posted, copies of the
attached notice marked "Appendix." 15 Copies of said notice, to be furnished by
the Regional Director for the Sixteenth Region, shall, after being duly signed by
the Respondent's representative, be posted by it immediately upon receipt thereof,
and maintained by it for at least 60 consecutive days thereafter. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps the Respondent
has taken to comply herewith.16
15 If this Recommended Order should be adopted by the Board, the words "As ordered by"
shall be substituted for "As recommended by a Trial Examiner of" in the notice In the
further event that the Board's Order be enforced by a decree of a United States Court of
Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforc-
ing an Order of" shall be substituted for "As ordered by."
1e In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of the_ nghts guaranteed them
in the National Labor Relations Act.
WE WILL NOT interrogate employees concerning union activities in a manner
constituting interference, restraint, or coercion in violation of Section 8(a)(1)
of the Act.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 47
WE WILL NOT threaten to lay off our employees in slack periods , eliminate
overtime work and retirement benefits, or threaten to discriminate against our
employees in any other manner because of their union or concerted activities.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in
any union activities.
All our employees are free to become or remain members of International Union
of Operating Engineers , AFL-CIO, Local 191, or any other union and they are
also free to refrain from joining any union.
WEST TEXAS EQUIPMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of posting , and must
not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth, Texas; 76102, Tele-
phone No. Edison 5-4211, Extension 2131, if they have any question concerning
this notice or compliance with its provisions.
The Great Atlantic and Pacific Tea Company, Inc. and American
Federation of Grain Millers, AFL-CIO, Petitioner. Cases Nos.
19-RC-3196, 19-RC-3220, and 19-RC-3221. June 25, 1963
DECISION ON REVIEW AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, hearings were held before hearing officers designated
by the Board. The rulings made at the hearings are free from prej-
udicial error and are hereby affirmed.
On March 7, 1963, the Regional Director for the Nineteenth Region
issued a decision in Case No. 19-RC-3196 finding, as contended by
the Petitioner, that the employees in the fresh pack department of the
Employer's operation constituted an appropriate unit, and directing
an election in that unit. The Employer filed a request with the Board
for review of the Regional Director's decision, contending that only a
plantwide production and maintenance unit is appropriate. On April
2,1963, the Board granted the request and stayed the election. There-
after, in view of the Board's action, the Regional Director forwarded
to the Board for decision the petitions subsequently filed by Petitioner
in Cases No. 19-RC-3220 and 19-RC-3221, in which Petitioner sought
units comprised of the maintenance group and the frozen food depart-
ment, respectively. As the three petitions involve identical parties
and similar issues, the Board has decided to consolidate them for
decisional purposes.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
143 NLRB No. 11.