Wilson & Toomer Fertilizer Co.

National Labor Relations Board - Board Decisions

Mar 23, 1965

151 N.L.R.B. 949 (N.L.R.B. 1965)

WILSON & TOOMER FERTILIZER COMPANY 949
The mailroom foremen and assistant foremen work a normal
five-day or night week, with each assistant foreman taking sole
charge of the room on the two shifts when his foreman is off. On
the 3 days or nights that both the foremen and assistant foremen are
present they divide their supervision. The mailroom complement
range from 15 to 45, depending on the size of the press run. In
the case of unexpected absences, the foreman or assistant foreman
selects replacements from a regular roster maintained for such
purpose. They assign and reassign personnel to the various jobs
in the mailroom such as counter, tieing machine, or weigher, during
the course of the shift as exigencies require. They coordinate
the mailroom activities with the flow of papers from the pressroom
so that the truck deliveries are made on schedule. They may order
additional paper truck deliveries, and split truck runs to meet their
time schedules, or change truck run schedules where necessary to
accommodate delay due to pressroom makeover. They instruct and
assign new employees, discipline, lay off, and effectively recommend
discharge of employees for intoxication, misconduct, or inadequate
job performance, and effectively recommend the hire and upgrading
of employees.
They perform manual work in the mailroom about half their time,
and receive about a 10-percent pay differential for a standard
50 hour workweek.
We are satisfied from the record that the mailroom foremen and
assistant foremen have the authority to responsibly direct the
work of the mailroom employees, and to effectively recommend
their hire, upgrading, discipline, and discharge. As they possess
the statutory indicia of supervisors under Section 2(11) of the
Act, we shall exclude them from the unit.
[The Board clarified the certification issued herein on May 14,
1964, by specifying that the day and night foremen and assistant
day and night foremen in the mailroom of the Employer's circula-
tion department are excluded from the unit as supervisors.]
Plymouth Cordage Company d/b/a Wilson & Toomer Fertilizer
Company and International Chemical Workers Union, Local
No. 667, AFL-CIO. Case No. 10-CA-2834. March, 23, 1965
DECISION AND ORDER
On August 14, 1964, Trial Examiner Lee J. Best issued his
Decision in the above-entitled proceeding, finding that the Respond-
151 NLRB No. 106.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor
practices, and recommended that the allegations of the complaint
pertaining thereto be dismissed. Thereafter, the General Counsel
and the Respondent filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Brown and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, for the following
reasons.
The Respondent is engaged in manufacturing fertilizer, a seasonal
industry. Each year, usually during April, May, and June, it lays
off a considerable number of employees, and begins to hire, rehire,
and recall employees in October.
Since 1959, after the Union had been certified and the parties
had signed the first of a series of collective-bargaining agreements,
the Respondent has laid off employees strictly in reverse order of
seniority. It has also recalled employees from layoff status accord-
ing to seniority, except that employees who had been in layoff
status for more than 4 months lost their contractual seniority
rights.
In the spring of 1963, the Respondent found it necessary to lay
off an extraordinarily large number of employees. As a result,
it laid off many employees who never before had been reached
for layoffs because of their long seniority; among them were the
president of Local No. 667 and four union stewards. It is undis-
puted that these layoffs were strictly in reverse order of seniority,
and it is not contended that any unfair labor practice was com-
mitted in the manner of selection for layoff. The complaint alleged
that the Respondent violated Section 8 (a) (3) by refusing in the
fall of 1963 to recall or rehire the five above-mentioned employees
because of their union activities.
WILSON & TOOMER FERTILIZER COMPANY 951
The Trial Examiner found that the Respondent did not dis-
criminate against employees Clarence Rodgers and James Hopkins
by not recalling or rehiring them, and dismissed the complaint as
to them. We agree with this finding for the reasons stated in
the Trial Examiner's Decision.' We likewise agree with his find-
ing that the failure to recall or rehire Spann Rountree, Herman
Winfrey, and James Washington was violative of Section 8(a) (3)
of the Act. However, we do not adopt his reasoning as to
Rountree .2
The Respondent contends that Spann Rountree, James Washing-
ton, and Herman Winfrey were not recalled to work because they
were undesirable employees. It argues further that, even assuming
these three did not have undesirable employment records, it cannot
be said to have passed them by when recalling and rehiring em-
ployees because it had no definite policy of notification to or recall
of specific employees. We do not agree with Respondent that the
three employees involved had undesirable employment records, and
we reject the contention that Respondent employed no system of
recall or rehire.
In support of its contention that Rountree, Winfrey, and Wash-
ington were undesirable, the Respondent relies in great part upon
the testimony of Plant Manager W. A. Stone. To refresh his
recollection as to events which concerned the five alleged dis-
criminatees herein, Stone made use of a personal "diary," in which
he allegedly had taken notes over a period of more than 2 years
with regard to "serious incidents" at the plant. In it were recorded
some of the incidents set forth below as to Rountree, Winfrey, and
Washington. He explained that he had notes with regard only
to the five alleged discriminatees because these were the only really
bad employees he had, and no other serious incidents had occurred.
The record shows that one of the incidents recorded therein (with
regard to Winfrey) in fact had involved another employee.'
1 We find no merit in the General Counsel's exceptions to these conclusions . It Is the
Board's established policy not to overrule a Trial Examiner ' s resolutions as to credibility
unless the clear preponderance of all the relevant evidence convinces us that they are
incorrect. Such a conclusion is not warranted here. Standard Dry Wall Products, Inc.,
91 NLRB 544, enfd. 188 F. 2d 362 (CA 3).
2 We do not adopt the Trial Examiner 's finding that Rountree ' s discharge was a con-
structive discharge , or that it was unlawful because the Respondent had failed to first
issue Rountree a warning slip concerning his "chronic absenteeism " We do not decide
whether the Respondent failed to honor the terms of its contract in this regard, as we
perceive no causal connection between such a failure and a finding that the Respondent
had violated Section 8 ( a) (3) of the Act.
We also do not adopt the Trial Examiner ' s finding that the Respondent deliberately
delayed the recalling or rehiring of employees beyond a period of 4 months in order to
destroy their seniority rights, as the record contains no substantial evidence to support it.
3 The Trial Examiner makes no mention of the "diary."
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stone's testimony in general was replete with conflicting state-
ments. He first testified that Rountree had been orally reprimanded
only once about his failure to report properly his intended absences.
Later in the record he stated it had been two or three times;
still later, three or four. He first testified that he told General
Foreman Giles not to recall or rehire Washington, Winfrey, and
Rountree. He later said he also included Hopkins and Rodgers
in this instruction. In view of these conflicts in testimony, the
dubious reliability of the "diary," and the further findings which
we make below, we are convinced that the testimony of Stone
should be given no controlling weight.
Rountree, president of Local 667, had been employed by the
Respondent continuously for more than 7 years before his June
1963 layoff. The record shows that during 1962, and the first 5
months of 1963, Rountree was absent from work on many occasions.
However, the record also shows that nearly all of the absences
were due to his activities on behalf of the Union. He has been
president of Local 667 since its certification, and also has acted
as chief shop steward, chairman of the union grievance committee,
and as one of the principal negotiators in collective-bargaining
sessions. In addition to this activity at the Jacksonville plant,
he helped organize employees of the Respondent at its Orlando
and Fort Pierce, Florida, plants. The record shows that Rountree
always obtained implied permission from at least his foreman for
his intended absences, and that Plant Manager Stone had given
express permission for at least some of his absences in connection
with the Orlando organizational activity. The period during
which the Orlando campaign was being carried on accounts for
approximately 34 days of absence.
We reject the claim that Rountree's absences caused serious
production problems in the department in which he was working
as a bag stacker. The record shows that Rountree's foreman did
not complain of such problems, and in fact liked Rountree's work.
General Foreman Giles also testified that he had been satisfied
with Rountree's work. Furthermore, as Rountree had never been
told that his absences were too frequent, but had only been reminded
that at times he had not informed the person with proper authority
that he intended to be absent, we cannot find his absences to be
excessive. The record does not support the Respondent's contention
that Rountree was an undesirable employee.
The Respondent contends that Rountree did not make application
for recall or rehire. However, the Union filed a grievance on Octo-
ber 21, 1963, which stated that it felt the Respondent had unfairly
WILSON & TOOMER FERTILIZER COMPANY 953
refused to recall or rehire union committeemen and officers, and
requesting it to do so, specifically naming Washington and Roun-
tree. Other than referring a copy of the request to its attorney,
the Respondent took no action with regard to this grievance.
Furthermore, Rountree's foreman, Abbott, had told him at the
time of his layoff that he would be recalled when the work picked
up,4 and the Respondent did employ a system of recalling specific
employees.
The Respondent states that Herman Winfrey, an over-the-road
truckdriver, was not recalled to work because of two alleged in-
fractions of company rules, and because his work in the bag depart-
ment "had become poorer and poorer and poorer." As pointed
out by the Trial Examiner, one of the alleged infractions was the
subject of a grievance which never was settled because interrupted
by Winfrey's layoff, and the other was shown in the record to have
involved a driver other than Winfrey. Thus, these alleged infrac-
tions do not form a basis for finding that Winfrey was an unde-
sirable employee.
Winfrey worked in the bag department about 20 percent of his
time during rush season (8 to 9 months), and most of his time
during the slack season. Foreman Williams, whose testimony the
Trial Examiner does not discuss, states that Winfrey often reported
late to work in his department, talked to James Washington 90
percent of the time that he was on the job, could not be found
during most of his hours on the clock, and engaged in slowdown
tactics. When queried as to why he had made Winfrey a "header"
or group leadman, which job he had held for many years, Williams
explained that Winfrey's work had only become unsatisfactory
after he became a driver. On the other hand, Plant Manager
Stone testified that Winfrey's work had been bad in the bag
department for years, and had been bad long before he was elected
union steward and committeeman. General Foreman Giles testified
that Winfrey performed his job in an acceptable manner.
Foreman Williams, although testifying that he often had trouble
with many of the workers iii his department, stated that he con-
sidered only Washington and Winfrey to have been so bad as to
warrant not recalling them. We find it difficult to believe that
the Respondent would have retained in its employ any worker
who consistently reported late to his job, talked 90 percent of the
4 The Respondent nowhere contends that the volume of work at the plant in the fall
of 1963 was such as to demand the rehiring of less than the normal complement of em-
ployees. On the contrary , the record shows that the Respondent's employees were then
working an extraordinary amount of overtime , a fact pointed out to the Respondent by
the October 21 grievance as a reason for recalling or rehiring union committeemen and
officers.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, and engaged in production slowdown tactics, and had been
performing in this manner for any substantial period of time,
let alone "for years."
According to the Respondent, James Washington, an over-the-
road truckdriver, and steward of the truckdrivers' department, was
not recalled to work because of three incidents (set forth in the
Trial Examiner's Decision) of rules violations which had occurred
early in 1962. After Rountree, Washington was the most active
union man in the Jacksonville plant. He frequently presented
grievances at the plant, and he assisted Rountree in organizing
the Respondent's Orlando and Fort Pierce plants. Washington
was first hired in 1957 as a laborer, promoted about a year later,
and was kept while more experienced men were laid off during
his first years at the plant. Sometime prior to 1961, he was again
given a better job-that of truckdriver. The record shows that
Washington was involved as steward in a number of grievances
which resulted in heated argument with management. General
Foreman Giles testified that Washington's quality of work was good
and that he was a "mighty fine boy." His truck dispatcher, Robert-
son, gave him a letter of recommendation which stated that he was
"honest, efficient and a good driver." Shortly before Washington's
layoff, the drivers' department was complimented on having achieved
the best safety record in Duval County, Florida, and Washington
received an award for safety as one of the Company's best drivers.
Washington spent approximately the same amount of time in
the bag department as did Winfrey. Foreman Williams testified
that Washington, too, virtually always reported late to his depart-
ment, talked to Winfrey 90 percent of the time that he was on the
job, could not be located during most of his hours on the clock,
and cooperated with Winfrey in slowdown tactics. However, in
view of Washington's several promotions, and his commendations
shortly before his layoff, we cannot agree with the Respondent's
contentions that Washington was an undesirable employee.
Both Washington and Winfrey also made application for recall.
The Respondent failed to answer the inquiry of either, and defends
its failure to do so on the grounds that they were undesirable em-
ployees, which grounds are discussed above. It further contends
that there were no jobs available for over-the-road truckdrivers
at the time these two employees made application. However, it is
admitted that both Washington and Winfrey were qualified to do
other work, and the record shows that the Respondent often recalled
those in layoff status to perform duties other than those they
were performing when laid off. The Respondent in fact recalled
WILSON & TOOMER FERTILIZER COMPANY 955
3 or 4 over-the-road drivers to work in other departments, at
]east 1 of whom, hired among the first 15 recalled in October, had
less experience than either Washington or Winfrey.
The record shows that, as the needs of the Respondent dictated,
it obtained employees by a mixed system of recalling laid-off em-
ployees and of hiring some new employees. It would tell employees
at the plant to let out the word to friends, especially those who
had previously been employed at the plant, that jobs were available.
Some former employees also made a practice of calling the plant,
or reporting to the plant in the morning, on a day-to-day basis,
to inquire as to job availability.
The Respondent admits that it made a general practice of seek-
ing experienced employees, and would take inexperienced employees
only when necessary. The record shows that the Respondent, in
addition to the above methods of putting old employees on notice,
also employed some system of notifying specific employees to return
to work, even in cases where those notified might have lost their
seniority. Assistant Plant Manager Clarence Cummings stated
that in October 1963 at least the first 15 people recalled were notified
by letter. He recalled the Plant Manager Stone had requested
permission of the production manager to notify these specific em-
ployees, and stated that upon inquiry both of the paymaster's
assistants told him they could recall sending such notices. Pay-
master Ray Bills testified he did not recall sending such notices.
Stone denied having asked anyone to notify any particular former
employee, stating that General Foreman Giles had done all the
hiring in October, after being told simply that a certain number of
employees was needed. Giles stated that he did not recall giving any
specific list to the paymaster, but simply told the latter that he
needed 15 men. The paymaster testified that he never accepted
any new employee on the rolls or paybooks unless such employee
had first been hired by Giles.
After reviewing all the evidence with regard to the Respondent's
policy of notifying former employees, we are convinced that, al-
thought the Respondent may not in past years have followed a
wholly uniform practice, it did, in some manner, notify approxi-
mately 15 specific employees in October 1963 that jobs were available
if they wished to return to work.5
After careful consideration of all the facts in this case, we find,
for the many reasons given above, that the Respondent's stated
reasons for not recalling or rehiring Rountree, Winfrey, and Wash-
ington were pretexts, that all three were active on behalf of the
5 Of the employees so notified , 14 reported to the plant "with the letter" to resume
their jobs, according to the testimony of Assistant Plant Manager Cummings.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, and that the Respondent failed or refused to recall them
in order to discourage membership in a labor organization within
the meaning of Section 8(a) (3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, its
officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, 29 U.S.C. 151 et seq. (herein called the Act), was heard pursuant to notice
at Jacksonville, Florida, on May 4, 5, 11, 12, 13, and 14, 1964, with all parties
present before Trial Examiner Lee A. Best . Based upon a charge filed on January 24,
1964, and an amended charge filed on March 27, 1964, by International Chemical
Workers Union, Local No. 667, AFL-CIO, herein called the Union or Charging
Party, the General Counsel of the National Labor Relations Board on March 27,
1964, issued a complaint against Plymouth Cordage Company d/b/a Wilson &
Toomer Fertilizer Company, herein called the Respondent or Company, alleging
in substance that said Respondent has continually since on or about July 24, 1963,
refused to rehire Spann Rountree, James Washington, Herman Winfrey, James R.
Hopkins, and Clarence Rodgers,' or to recall them to work in their former or sub-
stantially equivalent positions of employment, because of their membership in and
activities on behalf of the Union, or because they engaged in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, thereby
discriminating in regard to hire or tenure of employment to discourage membership
in a labor. organization, and thereby engaging in unfair labor practices within the
meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the Act. Respond-
ent filed an answer admitting the jurisdictional allegations of the complaint, admitting
its refusal to rehire said employees, but denies that such refusal constitutes any unfair
labor practice or failure to perform any duty owed to said employees. As an
affirmative defense, Respondent further asserts that the alleged discrimination against
James R. Hopkins and Clarence Rodgers occurred, if at all, more than 6 months
prior to their inclusion in the complaint by amendment on May 5, 1964, and that
such action is now barred by Section 10(b) of the Act.
All parties were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence pertinent to the issues involved, to present
oral argument on the record, and to thereafter file written briefs with the Trial
Examiner. Written brief filed by counsel for the Respondent has been given due
consideration, but none was submitted by counsel for the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Plymouth Cordage Company is a corporation duly organized and existing by
virtue of the laws of Massachusetts, and duly licensed to do business in the State
of Florida as Wilson & Toomer Fertilizer Company. While engaged in manufactur-
ing and selling fertilizer at plants in the State of Florida during the past 12 months,
the Respondent has received goods, products, and raw materials valued in excess
of $50,000 directly from points outside said State; and during the same representa-
tive period has shipped finished goods, supplies, and materials valued in excess of
$50,000 directly to points outside the State of Florida. I find, therefore, that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
'The two last named, Hopkins and Rodgers, were added to the complaint by amend-
ment at the hearing on May 5, 1964.
WILSON & TOOMER FERTILIZER COMPANY 957
of the Act . Supervisors of Respondent at its Jacksonville , Florida, plant include
Production Manager Reuben E. Neck, Plant Manager William A. Stone, Assistant
Plant Manager Clarence O. Cummings , General Foreman E . E. Giles, and Foremen
Herbert W. Williams, J. A. Abbott , and J . A. Robertson ( truck dispatcher).
II. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union , Local No. 667, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act, existing in whole or
part for the purpose of representing employees in dealing with employers con-
cerning grievances , labor disputes, wages, rates of pay, hours of employment, and
conditions of work Representatives of the Union include Phillip H. Whitehead
(International representative ), Spann Rountree (president of Local No. 667), and
Section Stewards James Washington , Herman Winfrey, James R. Hopkins, and
Clarence Rodgers.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Union was certified as bargaining representative for the production and
maintenance employees at Respondent 's Jacksonville plant in the fall of 1958. The
first written collective -bargaining agreement became effective in May 1959 and
has been renewed each year thereafter . Negotiations in the spring of 1963 resulted
in a strike beginning on May 23 and ending on June 7, 1963 , at the conclusion of
which the Union accepted the Company 's last proposal and executed the current
contract effective retroactively from May 17, 1963, to remain in full force and
effect until May 17, 1964 , and from year to year thereafter , unless either party
shall serve notice in writing upon the other not less than 60 days prior to the expira-
tion date , or like annual date thereafter, of its intention to change in part or terminate
this agreement . Both the 1962 and 1963 agreements provided for the layoff and
recall of employees on the basis of plantwide seniority , excepting seasonal or pro-
bationary workers who are not employed for more than 90 days. However, it is also
provided in the contract that "The seniority rights of an employee shall be considered
broken and all rights forfeited and there shall be no obligation to rehire when he
has been out of employment by the Company for a period of four ( 4) months or
longer." It is apparent that such a forfeiture of seniority was subject to the control
of Respondent by merely deferring the recall of an employee until 4 months had
expired. It is admitted that during the 1963 contract negotiations , the Union proposed
to extend the forfeiture period to 1 year or even 6 months, but the Company refused
to make any change in this contract provision . The Union also proposed super-
seniority for union officers and shop stewards , but the Respondent likewise rejected
such provision in the collective-bargaining agreement.
By reason of the seasonal nature of Respondent's fertilizer business , it lays off
a considerable number of employees during the months of April, May, and June
each year , and recalls them to work during the months of October, November, and
December . During this period of 3 months in the year 1962 , Respondent laid off
by seniority 57 employees in April ( 1), May ( 55), and June (1). During the same
3-month period in 1963 it laid off by seniority 106 employees in April ( 76), May
(1), and June ( 29). By reason of the larger number involved , many employees
who had never before been reached on the seniority list were laid off in 1963 includ-
ing the five alleged discriminatees herein. Soon after their layoff, Plant Manager
William A. Stone admittedly instructed General Foreman E. E Giles not to recall
Spann Rountree , James Washington , and Herman Winfrey, thereby foreclosing any
exercise of their seniority in the event any employees should be recalled before the
expiration of 4 months . General Foreman Giles customarily exercised the right of
layoff and recalling employees to meet the labor needs in Respondent 's plant. After
waiting until the seniority privileges of recall provided by the contract had expired,
the Respondent began rehiring new employees in October 1963 without regard to
prior service with the Company . On or about October 21, 1963 , the Union sub-
mitted to the Respondent a written grievance signed by Spann Rountree and James
Washington reciting that "the Company has laid off officers and committeemen of
the Union and has failed to recall such officers and committeemen in an effort to
cancel seniority rights, although production requirements of the plant are such that
employees are required to work 12 hour shifts." The adjustment requested in this
grievance was that the Respondent "Reinstate all laid off employees according to
seniority and pay such employees for all time lost since commencing 12 hour
shifts at the plant ." According to the testimony of Plant Manager William A. Stone
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this grievance was referred to the company attorney , but no further action was
taken about it. It is admitted that the alleged discriminatees have never been
recalled to work or rehired as new employees . In addition to the foregoing grievance,
both James Washington and Herman Winfrey wrote letters to Plant Manager
Stone requesting that they be considered for employment , but never received any
reply thereto. The Company attributes its failure and refusal to rehire these employ-
ees to a variety of reasons hereinafter set forth , which it contends constitute good
and sufficient cause for denying such employment to them.
B. Spann Rountree
It is contended by Respondent that Spann Rountree was not recalled to work or
rehired because of excessive absenteeism tending to disrupt the department in which
he was working as a bag stacker under the supervision of Foreman J. A. Abbott,
who had frequently complimented this employee on the manner in which he handled
the operation and maintenance of automatic loading scales at the ship dock. Gen-
eral Foreman E. E. Giles testified that Rountree was a good worker. Rountree had
been continuously employed by the Respondent since November 15, 1955, and by
reason of his seniority was never laid off prior to June 17 , 1963. He assisted the
Union in organizing production and maintenance employees of the Respondent at
the Jacksonville plant in 1958 . Since certification of the Union , he has continuously
served as the president of Local 667 , chief shop steward, chairman of the union
grievance committee , and as one of the principal negotiators in collective bargaining.
His signature appears in each collective -bargaining agreement entered into between
the Company and the Union . In addition to his activities on behalf of the Union at
Jacksonville , Spann Rountree and James Washington conducted an organizational
campaign to organize employees of the Respondent at Orlando , Florida, in September
and October 1962, whereupon the Board conducted an election in November 1962,
resulting in certification of the Union at the Orlando warehouse of the Respondent.
They also conducted an organizational campaign at the Fort Pierce, Florida, plant
of Respondent , but failed to win the ensuing election . Records of the Company
show that Spann Rountree was absent from work on approximately 68 days during
the period of 17 months from January 1, 1962, to the beginning of the strike on
May 23, 1963 , or an average of approximately 4 days per month. During this period
no warning slip was issued by the Respondent as required by article VIII of the con-
tract , to indicate that any disciplinary action would be taken with respect to chronic
absenteeism . It was not denied that Foreman J. A. Abbott at time of layoff told
Rountree that he would be recalled to his job when the work picked up. Article VIII
of the current collective agreement provides that:
No employee shall be discharged except for cause defined as follows:
(e) Chronic absenteeism ... No warning slips as provided in this agreement
shall be required when items ( a), (b), (d), and ( f), are found to exist by the
Company, but will be required for (c ) and (e ), and two warning slips will be
required for (g).
C. James Washington
It is contended by the Respondent that James Washington was not recalled to work
or rehired because he had been issued a warning slip 2 for violation of company rules
by transporting over the road an unauthorized person in the cab of his truck on
April 17, 1962, and by reason of another incident at Myakka City, Florida , on May 15,
1962, in which he went to sleep in his truck while the employees of a customer
unloaded it without any assistance from him as the driver . Other reasons presented
by the Respondent were that in February 1962 James Washington was arrested by
the Florida Highway Patrol and subsequently fined in the sum of $10 for the traffic
violation of following too closely in his truck behind another motor vehicle ; and that
on other occasions upon returning from a trip over the road would be late in reporting
to work the next morning to Foreman Williams in the Gro-tone department, where
he was assigned to work when not driving his truck . General Foreman E. E. Giles
testified that James Washington was a good worker-that "He's a mighty fine boy."
James Washington was first hired by the Respondent as a laborer in March 1957,
and worked continuously thereafter without any layoff until June 17, 1963. In the
course of his employment he worked progressively in the maintenance department,
then in the Gro-tone department where he drove a truck in making local deliveries.
2 By reason of a grievance filed by the Union, the Company withdrew and destroyed
this warning slip as being untimely issued.
WILSON & TOOMER FERTILIZER COMPANY 959
In 1959 he was permanently assigned as an over -the-road truckdriver . In 1961 he
was elected as section steward to represent the truckdrivers in presenting grievances
to immediate supervisors in the first step under grievance procedures provided in the
collective-bargaining agreement . He also frequently appeared along with President
Spann Rountree and the grievance committee in presenting grievances in writing to
the plant manager under the second step provided in the grievance procedure. He
also assisted Spann Rountree in organizing Respondent 's employees at Orlando and
Fort Pierce . At the time of his layoff in June 1963, his supervisor gave him a writ-
ten recommendation , as follows:
TO WHOM IT MAY CONCERN
JAMES WASHINGTON HAS BEEN IN OUR EMPLOY FOR SIX & ONE
HALF YEARS. HE HAS BEEN A TRUCK DRIVER FOR MOST OF THIS
TIME. I HAVE FOUND HIM TO BE HONEST, EFFICIENT AND A
GOOD DRIVER.
J. A. ROBERTSON
TRUCK DISPATCHER
D. Herman Winfrey
It is contended by the Respondent that Herman Winfrey was not recalled to work
or rehired because a warning slip had been issued to him about March or April 1963
concerning the misuse of expense money in hiring additional labor to unload his
truck at Cocoa Feed & Seed Company instead of performing the labor himself. The
issuance of this warning slip was contested by the Union by filing a grievance on
behalf of Winfrey under grievance procedure provided in the contract . However,
the record is very unclear as to what final disposition was made of this grievance.
Since the layoffs of April and June occurred shortly after this grievance was presented,
it does not appear that any final disposition has ever been made. It is agreed, how-
ever , that the Company had adopted a policy of giving to its truckdrivers the sum of
$20 as expense money to be used to hire labor to unload the truck whenever the cus-
tomer failed to provide such assistance . It is not clear here that Herman Winfrey
(truckdriver ) abused his discretion in the use of this fund to justify issuance of such
a warning slip. Another incident referred to by the Respondent as having occurred
at Island Grove in February 1963 was even more uncertain and hazy as to the identity
of the truckdriver involved or as to any infraction of duty by such truckdriver.
Winfrey denied that he was ever involved in any such incident at Island Grove, and
it appears from the testimony of James Washington that an entirely different truck-
driver was involved, but not Herman Winfrey.
Herman Winfrey was first hired on a part-time basis by the Respondent in 1952,
and thereafter became a permanent full-time employee on September 16, 1954.
When first hired he worked as a common laborer for 8 or 9 months , was then pro-
moted to driver of a towmotor , then about 1 year later was again promoted to
"header" or gang leader in the Gro-tone department to assist his foreman in checking
stock and materials on and off the trucks. While so employed as a "header" or
"leader," he was at his own request in 1962 transferred to the job of over-the-road
truckdriver , but continued to work in the Gro-tone department when not absent from
the plant. Winfrey was duly elected as section steward to represent employees of
the Gro-tone department in handling grievances with their immediate foreman or
supervisor . He also served as member of the grievance committee to assist Chief
Shop Steward Rountree in processing grievances in writing at the second step of the
grievance procedure . He also was a trustee of the Union , served on the negotiating
committee , and signed on behalf of the Union the collective -bargaining agreement
effective May 10, 1962.
E. James R. Hopkins
It is contended by the Respondent that James R. Hopkins has never been recalled
to work or rehired because no replacements have been hired in the maintenance
department since his layoff on June 17, 1963. Assistant Plant Manager Clarence O.
Cummings credibly testified that: Prior to the layoff the Respondent had been
engaged in a construction program which required an extra large maintenance crew;
upon completion of this program , James R. Hopkins and several others working in
the category of general helpers and laborers were laid off according to seniority and
never recalled ; the Respondent has had no need for additional unskilled or semi-
skilled employees in its maintenance department , and foresees no future need for
hiring additional maintenance employees , except possibly on a temporary basis; and
the only occasion on which temporary employees were hired since the layoff was the
hiring of two laborers for a period of approximately 35 days to dig a ditch for the
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
installation of gaslines . It is also contended by the Respondent that James R. Hop-
kins was not a satisfactory employee, but I find no reason to pass upon that conten-
tion in view of undisputed evidence that there have been no replacements hired in
the work being done by him for the Respondent . Having credited the testimony of
Assistant Plant Manager Cummings in that respect, I find that the General Counsel
has failed to show by a preponderance of the evidence that there has been any dis-
crimination by Respondent in regard to the hire or tenure of employment of James
R. Hopkins ( employee ), and shall recommend that the complaint with respect to
him be dismissed . It does not appear that Hopkins was a section steward prior to
January 1963 , or that he actively participated in the processing of grievances for
employees other than himself, as shown by Union's grievance No. 62-6 dated Sep-
tember 16 , 1962, which was submitted along with other grievances to arbitration on
February 12, 1963, and appears in the awards and opinion of A. R. Marshall, arbi-
trator, issued on April 10 , 1963, introduced in the record herein as Respondent's
Exhibit No. 2A.
F. Clarence Rodgers
It is contended by the Respondent that Clarence Rodgers was not recalled to work
or rehired because on February 22, 1963 , he remonstrated with his foreman ( Millard
Greene) about an excessive accumulation of sand in an alleyway through which he
was pushing a handtruck loaded with bags of fertilizer, and refused to push the hand-
truck until the sand was removed. For this Rodgers was given a warning slip, and
the Union filed a written grievance on his behalf , seeking unsuccessfully to have the
warning slip withdrawn . Another incident relied upon by the Respondent occurred
at No. 2 mill in the early part of April 1963, when Clarence Rodgers remonstrated
with Foreman Fred Ring for shoveling peanut hulls into a burlap bag, which was a
part of the job assigned to Rodgers himself. Respondent further contends that
Rodgers slowed down production at the end of the beltline by not being able to
remove and store the bags of fertilizer fast enough to keep up with a reasonable pro-
duction schedule . It appears that Rodgers did not become a full-time employee of
Respondent until 1960, and had frequently been laid off prior to 1963. According
to his own testimony he was first designated as a section steward in November 1962.
Other than the two incidents in which he himself became involved in arguments with
his foreman , there is no evidence that he processed any grievances on behalf of other
employees.
General Foreman E . E. Giles credibly testified in substance that Clarence Rodgers
exhibited a very negative attitude towards his work, was reluctant in obeying instruc-
tions from supervisors, would stall out the work, and never could get along with the
other men working along with him in storing bags-that he would slow down the
work by stopping the beltlme and complaining that it was running too fast
Having credited the testimony of General Foreman Giles with respect to the unde-
sirability of Clarence Rodgers as an employee , and finding insufficient evidence to
support a finding of discrimination because of his union activities , I shall recommend
that the complaint be dismissed insofar as it pertains to this employee.
Concluding Findings
Refusal by the Respondent to recall or rehire the president of the Union (Spann
Rountree ) for chronic absenteeism , without first issuing a warning slip, constitutes
a constructive discharge , and is prohibited by article VIII of the current collective-
bargaining agreement I find , therefore , that the Respondent on and at all times
since October 24, 1963, has and is discriminating in regard to the hire and tenure of
employment of Spann Rountree (employee) to discourage membership in a labor
organization within the meaning of Section 8 ( a) (3) of the Act.
According to General Foreman Giles , James Washington was a good worker and
a "mighty fine boy." Truck Dispatcher Robertson gave him a written recommenda-
tion when laid off for the first time in June 1963, stating that "I have found him to be
honest, efficient and a good driver." It therefore appears preposterous for the
Respondent to now assert that he has not been recalled to work or rehired because
of apparently insignificant events that occurred more than 1 year prior to his layoff,
including a warning slip admittedly withdrawn by the Respondent as the result of a
grievance filed by the Union. It seems very clear from the entire record herein that
the Respondent is trying to get rid of this man because of his activities on behalf
of the Union . I find , therefore , that on and since October 24, 1963, the Respondent
WILSON & TOOMER FERTILIZER COMPANY 961
has discriminated and is discriminating in regard to the hire and tenure of employ-
ment of James Washington (employee) to discourage membership in a labor organi-
zation within the meaning of Section 8(a)(3) of the Act.
All of the evidence in this case, including the seniority list attached to the record as
Respondent's Exhibit No. 8, points to the fact that Herman Winfrey is Respondent's
most senior employee with continuous service dating back to September 16, 1954,
following part-time service dating back to 1952. It is admitted that his work was
satisfactory until about 2 years ago when he allegedly began slowing down the work
and creating discontent among the other employees, while acting as leader and assist-
ant to his foreman in the bag room, but in that respect I find no substantial evidence
to justify a conclusion that he neglected his work. In fact, General Foreman E. E.
Giles testified that he would have no objection to rehiring either Spann Rountree or
Herman Winfrey. Certainly this general foreman in charge of hiring and firing all
employees in the manufacturing end of this fertilizer business would not so express
himself if Herman Winfrey and Spann Rountree had in recent months become as
unsatisfactory workers as counsel for the Respondent now contends I find the rea-
sons presented by Respondent for not recalling or rehiring this employee to be frivo-
lous and unconvincing. From a preponderance of the evidence I find that on and
since October 24, 1963, the Respondent has discriminated in regard to the hire and
tenure of employment of Herman Winfrey to discourage membership in a labor
organization within the meaning of Section 8(a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section III, above, occurring in con-
nection with the operations described in section I, above, has an intimate and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in the unfair
labor practices set forth above, I shall recommend that it cease and desist therefrom,
and take certain affirmative action designed to effectuate the policies of the National
Labor Relations Act. I shall recommend that the Respondent offer to Spann Roun-
tree, James Washington, and Herman Winfrey immediate and full reinstatement to
their former or substantially equivalent positions 3 without prejudice to their seniority
or other rights and privileges of employment; and make each of them whole for any
loss of pay and other emoluments he may have suffered by reason of the discrimina-
tion against him by the payment to each of a sum of money equal to that he would
normally have earned as wages from October 24, 1963, on which date they would
normally have been recalled to work (absent the discrimination) to such date as the
Respondent shall offer to each of them, respectively, proper reinstatement as herein
provided, less his net earnings 4 during that period. Such backpay shall be computed
on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Co,
90 NLRB 289-294, and shall include interest at 6 percent per annum as prescribed
by the Board in Isis Plumbing & Heating Co., 138 NLRB 716
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Plymouth Cordage Company d/b/a Wilson & Toomer Fertilizer Company is
an employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Chemical Workers Union, Local No. 667, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire or tenure of employment of Spann
Rountree, James Washington, and Herman Winfrey to discourage membership in a
labor organization, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
S See The Chaae National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
A See Cro88ett Lumber Co ., 8 NLRB 440.
783-133-66-vol. 151-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. A preponderance of the evidence herein does not support or justify a finding
that Respondent by discrimination in regard to hire or tenure of employment to
discourage membership in a labor organization failed or refused to recall or rehire
James R. Hopkins and Clarence Rodgers.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the Respondent, Plymouth Cordage Com-
pany d/b/a Wilson & Toomer Fertilizer Company, its agents, supervisors , successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Chemical Workers Union, Local
No. 667, AFL-CIO, or any other labor organization, by failing or refusing to recall
or rehire its laid-off employees, or otherwise discriminating in regard to their hire or
tenure of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization to form, join , or assist International
Chemical Workers Union, Local No. 667, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection or to refrain from engaging in any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to Spann Rountree, James Washington , and Herman Winfrey immediate
and full reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges of employment.
(b) Notify Spann Rountree, James Washington, and Herman Winfrey, if any of
them are serving in the Armed Forces of the United States, of their rights to full
reinstatement upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
(c) Make whole its said employees , Spann Rountree , James Washington, and
Herman Winfrey, for any loss of pay and other emoluments each of them may have
suffered by reason of the discrimination against him by payment to each of them of
a sum of money equal to the amount he normally would have earned as wages from
October 24, 1963, when Respondent failed and refused to recall or rehire him, to the
date on which Respondent shall individually and respectively offer to them proper
reinstatement in the manner provided above in section V entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board and its agents, for
examination and production, all payroll records, social security data, timecards,
personnel files and reports , and all other records in its possession which may be neces-
sary to analyze, compute, and determine the amounts of backpay and other emolu-
ments respectively due and payable to these employees under the terms and condi-
tions specified in this Recommended Order.
(e) Post at and in its plant, offices, and warehouse at Jacksonville, Florida, copies
of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for Region 12, shall, after being duly signed by an author-
ized representative of Respondent, be posted by Respondent immediately upon
receipt thereof and maintained by it for a period of 60 consecutive days from date
of posting in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
5In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words " the Recommended Order of a Trial
Examiner" 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 "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
STANDARD PRINTING COMPANY OF CANTON 963
(f) Notify the said Regional Director for Region 12, Tampa, Florida , in writing,
within 20 days from the date hereof, what steps Respondent has taken to comply
with this Recommended Orders
6If 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 Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership. in International Chemical Workers
Union, Local No. 667, AFL-CIO, or any other labor organization, by failing
to recall or rehire employees because of their engaging in concerted activities
for the purposes of collective bargaining or other mutual aid or protection.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in their exercise of the right to self-organization , to form, join, or
assist the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for their mutual aid or protection , or to refrain from any or all of
such activities.
WE WILL offer Spann Rountree , James Washington , and Herman Winfrey
immediate and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges of employ-
ment, and make each of them whole for any loss of wages and other emoluments
he may have suffered by reason of our discrimination against them.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above-named or any other labor organization.
PLYMOUTH CORDAGE COMPANY d/b/a WILSON
& TOOMER FERTILIZER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Ross
Building, 112 East Cass Street, Tampa , Florida, Telephone No. 223-4623, if they
have any question concerning this notice or compliance with its provisions.
Standard Printing Company of Canton and International Print-
ing Pressmen and Assistants' Union of North America, AFL-
CIO. Case No. 8-CA-3175. March 23, 1965
SUPPLEMENTAL DECISION AND ORDER
On December 16, 1963, the Board issued an Order in the above-
entitled case, adopting the findings and conclusions of the Trial
Examiner that, inter alia, the Respondent had discriminated against
certain employees in violation of Section 8(a) (3) of the Act, and
151 NLRB No. 107.