American Art Clay Co., Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1964

148 N.L.R.B. 1209 (N.L.R.B. 1964)

AMERICAN ART CLAY COMPANY, INC. 1209
WE WILL NOT interrogate our employees in connection with their union
membership , activities , or sentiments , in a manner constituting interference,
restraint, or coercion under the National Labor Relations Act.
WE WILL NOT, directly or indirectly , promise benefits to our employees in
order to effect their free choice of a collective -bargaining representative.
WE WILL NOT engage in surveillance of the union activities of our employees,
or create the impression that they are being watched.
WE WILL NOT in any manner discriminate against any employee because
of his membership in, or activity on behalf of, Hotel , Motel and Club Em-
ployees Union , Local 251, AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to form organiza-
tions, to 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 the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities.
WE WILL offer to Johnny Charles, Theresa Adams, Clarence McWilliams,
and Daniel Etheridge immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to seniority and other
rights and privileges , and make them whole for any loss of pay suffered as a
result of our discrimination against them.
SHERATON -HOUSTON CORPORATION,
Employer.
Dated--- ---------------- By-------------------------------------------(Representative ) (Title)
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, 6617
Federal Office Building, 515 Rusk Avenue, Houston , Texas, Telephone No.
CA 8-0611, Extension 4271, if they have any questions concerning this notice or
compliance with its provisions.
American Art Clay Company, Inc. and Ludene Burnett
American Art Clay Company, Inc. and Local 135, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Cases Nos. 25-CA-1775, 25-CA-1775-92, and
25-CA-1819. September 22, 1964
DECISION AND ORDER
On April 7, 1964, Trial Examiner Jerry B. Stone issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to certain por-
tions of the Trial Examiner's Decision, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
148 NLRB No. 124.
1210- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case to' a three-member panel [Chairman McCulloch and Mem-
bers Fanning 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,2 and recom-
mendations of the Trial Examiner, with the modifications noted
below.
The Trial Examiner held that the evidence did not sustain a find-
ing that the Respondent violated the Act by the layoff of Sylvester
Brown on July 15, 1963. He found that Brown was a good employee
with sufficient skills to perform jobs other than that from which he
was laid off, and that the Respondent was aware of Brown's abilities.
The Trial Examiner indicated that the layoff of Brown, who was
known by the Respondent to have engaged in union activity, would
have been discriminatory except that the absence of specific evidence of
Respondent's need for Brown in another job at the time of his layoff
precluded him from so finding. We do not agree.
Accepting the Trial Examiner's credibility findings, we find that
a preponderance of the evidence demonstrates that Brown's layoff
was discriminatorily motivated, in violation of Section 8(a) (1) and
(3) of the Act. Brown's layoff, which occurred just prior to the peak
of Respondent's busy season, was contrary to two admitted policies
of the Respondent. First, although a seniority system was used to
determine layoffs, Brown testified without contradiction that at least
one employee junior to him in his department was retained at the time
of his layoff. Second, the Respondent had a policy of attempting to
transfer employees to other departments, in order to avoid layoffs,
whenever possible. Indeed, this policy had been applied to Brown,
himself, when Respondent considered laying him off in March 1963,
just 3 months prior to the termination here in question. At that time,
Foreman Luther Frierson, under whom Brown had worked when
I The Trial Examiner found, and we agree, that Dollie Hensley is a clay department
supervisor within the meaning of Section 2(11) of the Act In addition to the facts relied
upon by the Trial Examiner , it is noted that if, as Respondent argues, Hensley were not
a supervisor, there would be only 1 supervisor ( Foreman Edgar Sturgill ) for the 40 em-
ployees in the clay department-a clearly disproportionate number. This factor thus
further supports the finding of the Trial Examiner that Dollie Hensley is a supervisor
within the meaning of the Act.
2 The Trial Examiner concluded that the Respondent violated Section 8(a)(1) of the
Act in a threat to employee Nora Alice Williams by Richard Foltz, whom the Trial Ex-
aminer found to be a supervisor within the meaning of the Act. We find it unnecessary
to pass upon the Respondent 's exceptions to this conclusion of the Trial Examiner, as
this 8 ( a) (1) allegation would be merely cumulative to the other violations of Section
8(a) (1) found by the Trial Examiner, to which the Respondent has filed no exceptions
We note that the Respondent likewise filed no exceptions to certain of the Section
8(a) (3) violations found by the Trial Examiner.
AMERICAN ART CLAY COMPANY, INC. 1211
earlier employed by Respondent, obtained Brown's transfer to his
department. The policy. was not, however, applied at the time of
Brown's layoff on July 15, 1963. Thus Respondent, just prior to
Brown's layoff, twice attempted by telegram to recall employee Jesse
Lynn, who had been laid off shortly before, to handle stock. Lynn,
however, did not respond. Although Brown had handled stock and
was available to perform this very work for which Respondent at-
tempted to recall employee Lynn, he was not offered a transfer to do
stockwork, either at the time of his layoff or at any time subsequent
thereto. Yet, as noted by the Trial Examiner, Brown was acknowl-
edged by Respondent to be a good employee who could and did per-
form that and other jobs in the plant. Finally, it is admitted that
new employees were hired by Respondent shortly after Brown's layoff
which, as noted above, took place during the Respondent's peak sea-
son and marked a departure from two established company policies.
These circumstances, set in the context of Respondent's knowledge
of Brown's union activity, its pattern of unlawful threats, interroga-
tion, discrimination, and other acts of antiunion hostility, amply sup-
port a finding that Brown was laid off because of his union activity,
in violation of Section 8(a) (1) and (3) of the Act. We so find.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board liereby adopts, as its Order, the Order recom-
mended by the Trial' Examiner, and orders that the Respondent,
American Art Clay Company, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Rec-
ommended Order, with the following modifications :
1. Add to paragraph 2(a), following the name of Reba Eaton, the
words "and Sylvester Brown," and delete the word "and" following
the name of William A. Middleton.
2. Add to paragraph 2(b), following the name of Reba Eaton, the
words "and Sylvester Brown," and delete the word "and" following
the name of William A. Middleton.
3. Add to the first full paragraph of the Appendix, following the
name of Reba Eaton, the words "and Sylvester Brown," and delete
the word "and" following the name of William Middleton.
4. Add the following sentence to paragraph 2 (a) of the Trial Ex-
aminer's Recommended Order : "Notify the above-named employees
if presently serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal, Military Training and Serv-
ice Act of 1948, as amended, after discharge from the Armed Forces."
1212 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge (Case No. 25-CA-1775) filed on July 9, 1963 , by Ludene Burnett,
and upon charges (Case No. 25-CA-1775-2) filed on July 9 and August 9, 1963,
respectively , by Local 135, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America ( herein called the Union ), the General
Counsel of the National Labor Relations Board , by the Regional Director for
Region 25 (Indianapolis , Indiana), consolidated said cases and issued his complaint,
dated August 23, 1963, against American Art Clay Company, Inc. (herein called
the Respondent ). Upon a charge (Case No. 25-CA- 1819 ) filed on September 26,
1963, by the Union, and upon the charges filed in Cases Nos. 25-CA-1775 and
25-CA-1775-2, the aforesaid Regional Director consolidated all the aforesaid cases
for hearing and issued an additional complaint ( referred to as consolidated) dated
October 8, 1963, against the Respondent . In substance , the complaint alleged that
the Respondent had engaged in conduct proscribed by Section 8(a)(1) and (3) of
the National Labor Relations Act (herein called the Act), and that such conduct
affected and was affecting commerce as set forth in Section 2(6) and (7) of the
Act. Respondent 's answers admitted many of the facts pleaded but denied the com-
mission of unfair labor practices.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B. Stone at Indianapolis , Indiana, on October 29 and 30 and November 13 and
14, 1963. All parties were represented at and participated in the hearing and were
afforded the right to present evidence , to examine and cross -examine witnesses, to
offer oral argument , and to file briefs . Briefs were filed by the General Counsel
and the Respondent and have been considered.
Upon the entire record in this case , and from my observation of the witnesses,
the following findings of fact, conclusions of law, and recommendations are made.'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
American Art Clay Company, Inc., is an Indiana corporation with its place of
business at Indianapolis, Indiana, where it is engaged in the manufacture of school
supplies, including kilns, crayons, chalk, and finger paints. During a representa-
tive 12-month period, Respondent manufactured, sold, and shipped finished products,
valued in excess of $50,000 from its Indianapolis plant to points located outside the
State of Indiana Upon the above facts, admitted by the Respondent, it is found
that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED 2
Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen'
and Helpers of America is, and has been at all times material herein, a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary background 3 -
The Union's Organizational Campaign
Sometime around June 20, 1963, employees of the Respondent commenced dis-
cussion of unionism. About this time rumors of such activity reached the atten-
tion of Plant Manager Smithers During the period of time around June 20 to
June 29, 1963, employee Jesse Lynn inquired of employees as to interest in the
1 All credibility resolutions are based in whole or in part on my observation of the wit-
nesses' demeanor. Some of the witnesses were credible as to part but not as to all of
their testimony. Certain minor errors in the transcript as to spelling of names are hereby
deemed corrected so as to spell the following names-"Theodore Philpott" instead of
"Philpot," "William Lienart" instead of "Lienert," "Robert Saugee" instead of "Robert
Sarge," and "Bud Stuard" Instead of "Bud Stewart."
2 The facts are based on the pleadings.
3I have not considered and deem it unnecessary to consider, as requested by the General
Counsel, the Board's Decision in American Art Clay Company, Inc., 142 NLRB 624. The
Board's Order in the aforesaid case was denied enforcement by the United States Court of
Appeals for the Seventh Circuit on February 19, 1964, American Art Clay Company,
Inc. v. N.L R.B., 328 F. 2d 88 (CA. 7).
- AMERICAN ART CLAY COMPANY,, INC., 1213
Union, solicited employees to furnish him a list, of employees, (and addresses) who
were interested-in the Union, and received several such lists. On June 29, 1963,
employee Lynn and several other employees contacted the Union and secured union
authorization cards. Lynn and. his fellow employees immediately commenced
signing and distributing the union cards and soliciting employees to sign union cards.
B. Interference, restraint, and coercion
The General Counsel contends that Respondent by certain supervisors and agents
engaged in acts of interference, restraint, and coercion against its employees as part
of an antiunion campaign. The majority of the acts and alleged acts are herein set
out in this section of the Decision. Certain acts and alleged acts of interference,
restraint, and coercion are set out, however, in section III, C, which is primarily
directed to the acts and alleged acts of discriminatory layoffs and discharges.
1. Foreman Boles' alleged interrogation of and threat to
employee Edward Brown
On July 5, 1963, Foreman Earl Boles had a conversation with employee Edward
Brown as is revealed by the following excerpts from his credited testimony: 4
Q. Do you recall whether or not you. ever had a conversation with Edward
Brown concerning union cards or union activity?
A. We had a conversation, yes.
Q. Relate what that conversation was?
A. Well, I went in there one morning-I was going to pull some chalk out
of the dryer-I noticed for the last week or ten days something was bothering
him, something on his mind. He is kind of a sensitive boy anyway, good boy,
and I went in there and said, "Brown, what's wrong, what's on your mind, what
seems to be troubling you?" He said, "I don't like to tell you." I said, "That's
your privilege but if there is anything I can help you with I'll be glad to do it,
financial or family trouble, something bothering you." He said, "Mr. Earl,
the union is just riding me to death." "What do you mean by that?" He said,
"Just won't let me alone, keeps nagging and nagging and nagging so I signed
a card." I said, "You don't have to tell me that if you don't want to." He
said, "I'm telling you I'd like to get rid of it some way; don't want to have
nothing to do with it." I told him there was nothing I could do; that if he
signed a card he would just have to sign it, that I didn't have anything to do
with it at all.
The aforedescribed conduct does not constitute Respondent's conduct violative of
Section 8 (a) (1) of the Act.
2. Alleged interrogation of and promise of benefits to employee Phelps
Around July 4 or 5, 1964, employee Estill Phelps called Foreman Boles to his
work station. The ensuing conversation and events is revealed by the following
excerpts from Boles' credited testimony: 5
I I credit Edward Brown ' s testimony as to the time of the event . Other facts are based
on the credited testimony of Earl Boles I do not credit Edward Brown's testimony to
the effect that on July 5, 1963, Foreman Boles questioned him as to whether union
cards were being passed to Brown, who, was passing union cards , and whether he (Brown)
had signed a card, that he (Brown ) told Boles that he , had not signed a card , that he did
not know who was behind the Union, that if he told Boles who was passing cards that
they probably would get fired , that Boles , asked him if he knew what would happen if the
Union got in, that he ( Brown ) replied that the Company would probably close the doors,
and that Boles answered that he was absolutely right. Neither Brown nor Boles was an
impressive witness. Brown appeared reluctant but not hostile in his testimony . Some of
his direct examination , testimony was elicited by leading questions . Of the two witnesses
Boles appeared more credible . I find , Boles to be amore credible witness than Brown and
so credit his testimony.
51 fix the time in accordance with Phelps' uncontradicted credited testimony. Other
facts are based on Boles ' credited testimony . Phelps testified to the effect that lie had
asked Boles for a 5-cent raise several weeks before July 1, 1963; that Boles had said that
he (Boles ) had been there for 30 years without a 5, cent raise , but that he would see
about it. Phelps further testified that 3 or 4 days after July 1, 1963, Boles asked him
how he (Phelps ) was going to vote, union or nonunion , that Boles then took out a' little
blue tablet and wrote Phelps' name down and stated that he never forgot the name he
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What was that conversation between you and Phelps?
A. Called me over there one time and got to talking, said, "How about
giving me a raise." I said, "The way things are now 11 couldn't give anybody a
raise. If I gave you a raise now the Union would come back and claim I
was trying to bribe you; I just couldn't give anybody a raise."
Q. Did you write his name down in any blue tablet at the time he asked you
for a raise?
A. No, sir.
Q. Did you tell him you never forgot names you wrote down in the tablet,
and say, "I'll guarantee you one thing, if this union don't go in you'll get your
nickel raise?"
A. I didn't tell him anything like that.
Q. Was there anything else in the conversation with Estill Phelps at the
time he asked for the raise other than what you've testified to?
A. Told him his production was down quite a bit and before I could give
him a raise he would have to bring his production back up.
Q. Volunteer any information to you at this time or any other time about
his union activity?
A. Said something about the union , "Don't know just what I'm going to do."
I didn't ask him, he volunteered all this information.
Q. You didn't ask him?
A. I didn't ask him nothing.
The aforedescribed conduct of Boles does not constitute Respondent's conduct
violative of Section 8 (a) (1) of the Act.
3. Foreman Frierson
Interrogation of Employee Philpott 6
On July 5, 1963, Foreman Frierson approached employee Norma Philpott at
work and told her he was going to ask her a question but that she did not have
to answer it. Frierson asked Philpott if anyone had approached her directly and
asked her about the Union. Philpott told Frierson that no one had approached her
or asked her about the Union. Philpott asked Frierson who was trying to get a
union in and Frierson made some reply? Later, after lunch, Frierson talked to
Philpott again and told her that the people trying to put the Union in would not
hurt the Company, that Mr. Philpott (the owner) would not be hurt, that his salary
would continue, that if a union was put in that there would be a strike but his
salary would go on, that only the workers would be hurt. Frierson also told about
an earlier attempt to have a union, that some of the employees signed union cards,
and that a person named Trapp had turned "it" in. Frierson also talked about a
committee.
Foreman Frierson's interrogation of Norma Philpott, described above, constitutes
Respondent's conduct violative of Section 8(a)(1) of the Act. I so conclude and
find.
4. Superintendent Smithers
a. Interrogation of employee Gibson 8
Shelby Gibson signed a union card around the first of July 1963. About this
time, while at work one day, Gibson saw Superintendent Smithers walking real fast
wrote down , that Boles said that he would guarantee that if the Union did not go in that
Phelps would get his raise . Neither Boles nor Phelps was an impressive witness. As be-
tween Boles and Phelps I was more impressed that Boles was telling the truth as to
events pertaining to Phelps. I credit Boles' version of the events over Phelps'.
Based on the credited testimony of Norma Philpott. Foreman Frierson testified to
the effect that he had a conversation with Norma Philpott and asked her if she had heard
anything about a union. Frierson testified that Philpott told him that she had heard
about the Union. Frierson denied a further conversation in the afternoon with Philpott
about the Union. From my observation of Philpott's and Frierson' s demeanor as wit-
nesses, I found Philpott to present a franker and more truthful appearance. I credit
Philpott's version of the events over that of Frierson.
'+ Philpott's testimony did not clearly reveal what was said in this respect.
8 Based on the credited testimony of Shelby Gibson whose demeanor was that of a frank
and truthful witness. Plant Superintendent Smithers denied having a conversation with
Shelby Gibson concerning the passing out of union cards. Smithers' demeanor and testi-
mony in general was not that of a truthful witness. I do not credit Smithers' denial
therein.
AMERICAN ART CLAY COMPANY, INC. 1.215
through his department. Smithers was "red" in the- face. Smithers returned in
about 10 minutes and after Smithers had passed by Gibson, turned, walked toward
Gibson, and asked Gibson if he had heard anything about any union cards being
passed out. Gibson asked Smithers what he meant by union cards. Smithers re-
plied that Gibson knew that he was talking about union cards. Gibson replied
that he had not heard a thing. Smithers then told Gibson that the Company had
been counting on him for a long time and asked if he did not know this. Gibson
replied that he did, and if he heard anything that he would let Smithers know. The
aforedescribed interrogation of Gibson by Superintendent Smithers concerning union
activities of,employees constitutes Respondent's conduct violative of Section 8(a) (1)
of the Act. I so conclude and find.
b. Threats to employee Lippard 9
A week or so after the first of July 1963, employee Lippard was' returning to "his
work station after taking a skid of brick outside the building he worked in. Super-
intendent Smithers motioned to Lippard and Lippard went to Smithers in the hall.
Smithers told Lippard that he did not know what kind of fence he was on, that the
Company had been good to him. Smithers asked Lippard if he could afford to have
time off. Lippard told Smithers that he could not afford time off. Smithers told
Lippard that if the Union got in there would probably be a strike, that the em-
ployees would lose a lot of benefits like getting loans, advances, and other things.
The above-described conduct of Superintendent Smithers constitutes conduct of
Respondent violative of Section 8 (a) (1) of the Act.
c. Alleged threat-employee Brown
General Counsel's witness Edward Brown also testified to the effect that Super-
intendent Smithers, on July 5, 1963, told him that the Company could not pay
union wages and that therefore the chalk machines and coloring machines would
have to be thrown away or sold for junk, that if the Union came in the employees
would have to depend on the Union, that the Company would not pay any more
factory bonus or be lending money, and that Brown should talk to his friends.
Superintendent Smithers testified that Brown told him about attending a union meet-
ing and receiving sandwiches, that Brown was laughing about the event, that he
(Smithers) told Brown that he thought the Union was for larger places and not
small places, and that he did not tell Brown that the factory bonus plan and loans
of money would be withdrawn if the Union came in.
Although in many respects as to Smithers' testimony I found him to be evasive
and not frank, I am not convinced that Brown's version of the facts are more
credible than Smithers'. Brown impressed me as a reluctant but not hostile witness.
He did not appear to believe that he was telling the truth of what happened. I
do not credit his version of the facts over Smithers' version. Accordingly, I do
not find that the-General Counsel has established evidence through witness Brown,
which considered with all the other evidence independently reveals Respondent's
conduct violative of Section 8 (a) (1) of the Act.
5. Foreman Schell
a. Interrogation of and threats-employee Lee 10
On July 3, 1963, Foreman Schell called employee Leslie Lee away from his work
and asked him if anyone had approached him with a union card or anything. Lee
told him that no one had. Schell stated that Smithers had told him that he had
heard that Art had passed out union cards and that Smithers was thinking of clos-
ing the welding shop and letting Art go.
6 Based on the credited testimony of Mark Lippard. Lippard demonstrated in his testi-
mony a sincere desire to tell the truth. Smithers , as to many material facts, revealed an
evasive attitude. I credit Lippard's version over that of Smithers. Although Lippard did
not recall the word "union" being used by Smithers, Smithers testified to the effect that
he did mention "union " It is obvious from the full context of Lippard's testimony that
the word "union" was used. I do not credit Smithers' testimony to the effect that he
did not mention reduction in benefits, etc., and that he only reminded Lippard of what
the Company had done for him in the past, that if the Union got in, the union dues would
come out of his wages
lU Based on Lee's uncontradicted credited testimony.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About a week after July 3, 1963, Schell asked Lee if he had signed a union card.
'Lee told him that he had not. -Foreman Schell then asked Lee if he knew anyone
who had signed a card. Lee told Schell that he did not know anything about the
signing of cards.
The aforedescribed interrogation and threats constitute Respondent's Foreman
Schell's conduct violative of Section 8(a)(1) of the Act. I so conclude and find.
b. Alleged threat of reprisal overheard by employee Lippard
Lippard further testified, but not clearly, concerning overhearing Foreman Schell
talk to employee Remy concerning a loan . Lippard 's testimony appeared to be to the
effect that Schell told Remy that Superintendent Smithers had said that if the
Union came in that he would not be getting this "stuff." Lippard could not remem-
ber exactly what was said. I am not convinced that Lippard's recollection of
what was said on this point is reliable enough upon which to make a finding of
fact, and do not do so.
6. Supervisor Richard Foltz
a. Supervisory status
Whether Foltz was a supervisor is disputed. The facts are largely undisputed.
Foltz was hired on July 13, 1961, in the shipping department at an hourly wage
rate of $1.25. In August 1961 Foltz was transferred to the laboratory and received
a raise in pay. Foltz received a promotion in June 1962 and was placed in charge
of the color laboratory. His job was entitled "laboratory technician." During
this period of time Foltz was paid at an hourly rate and punched a timecard.
Around January 1963 Foltz ceased punching a timecard and commenced keeping
his own time and receiving pay on a "salary basis" of $82.50 for a 44-hour week.
Around February 1963, Foltz suggested to Gordon Huckaby that there might be
a job open at Respondent. Huckaby filed an application and was interviewed by
Plant Superintendent Smithers. Smithers later asked Foltz what he thought about
Huckaby working in the laboratory and whether Foltz thought Huckaby would
like the job or be a fit man to work in the laboratory. Foltz told Smithers "Yes,
I guess so."
Huckaby started to work. About this time (February 1963) Foltz told Huckaby
that he was a foreman. On one occasion Huckaby forgot to punch his timecard.
Huckaby took the card to Foltz who filled it in and initialed the card. Huckaby
was trained by Foltz. On those occasions that Huckaby needed instructions he
received the same from Foltz. Huckaby commenced work with an hourly pay
rate of $1.50 and was earning $1.50 per hour at the time of the hearing (October 29,
1963 ) in this matter.
Sometime around June or July 1963, the time of the union activity in this matter,
Foltz told Huckaby that he was not and had never been a foreman.
Foremen usually work 44 hours a week and usually work on Saturday morning.
Foltz works 44 hours a week and works on Saturday morning. Rank-and-file em-
ployees do not normally work on Saturday mornings. The Respondent holds meet-
ings periodically, described by Smithers and Foltz as safety meetings. Foremen,
Foltz, the chemist, and an accountant attend these "safety" meetings. Ordinary
rank-and-file employees do not attend the "safety meetings."
Foltz, who impressed me as a reluctant General Counsel witness, testified at one
instance as follows:
Gordon. He knows the way he's running color. He knows what is left and
it is entirely up to him. Once in a while he will want to know and he will
ask me or ask some of the other foremen'how the color level is and how much
they're going to need in the future, or ask the people who make chalk how
much color they need or what kind, etc. He works most of it out himself
because he can do it just as well if I wasn't there.
Foltz later testified that he did not consider himself a foreman and that he did not
mean he was a foreman when he used the words "other foremen." Smithers testi-
fied that he had never told Foltz that he was a foreman and that Foltz' duties were
not those of a foreman. Smithers further testified that he was the only one who
had the authority to tell Foltz that he was a foreman. .
From my observation of Foltz as a witness while testifying I am convinced that
his true feeling of his authority is revealed by his testimony set forth which, in effect,
describes him as a foreman. Foltz' belief is not the basis upon which supervisory
authority should be determined. I am convinced that Smithers' best evaluation of
Foltz' authority was set forth in his testimony wherein he admitted a prior statement
AMERICAN ART CLAY 'COMPANY, INC. 1217
to a Board agent in which he had said that Foltz was in charge of the color labora-
tory and responsible for the operation of that laboratory and that Foltz had one.
employee working under his direction.
Smithers testified contradictorily to the effect that he (Smithers) was the only
one with supervisory authority over the laboratory employees, and that Irvin Spittel
exercised, and did not exercise, supervisory authority. His general testimony with
respect to the supervision of the laboratory was confused and in my opinion com-
pletely unreliable.
Considering all of the facts set forth, including Huckaby's credited testimony to,
the effect that he received such instructions as were necessary for his work duties„
and Smithers' testimony relating to the fact that Foltz was in charge of the color
laboratory and responsible for its operation, and had one employee under his
direction, the fact that Foltz checked the colors made by Huckaby, and that if
Foltz is not a supervisor that Huckaby in effect received no supervision, I conclude
and find that Foltz responsibly directs the work of Huckaby and is a supervisor
within the meaning of Section 2(11) of the Act.
b. Threat of Williams 11
Nora Alice Williams commenced work for the Respondent in the middle of
June 1963. Union card solicitation began around July 1, 1963. Around this time
Williams signed a union card. Several weeks later Williams posed as a model for
sculpture for Supervisor Foltz. She asked Foltz what he 'thought of the Union.
Foltz told Williams that he did not think the Union would go in, that he thought
the plant would close down, and that Philpott would close the doors before he
would allow a union in "there." The above-described conduct of Supervisor Foltz
constitutes Respondent's conduct violative of Section 8(a)(1) of the Act.
7. Foreman Sturgill
Alleged Interrogation of Employee Harden
General Counsel's witness Betty Harden testified to the effect that: (1) On,
July 5, 1963, Foreman Edgar Sturgill came up to her at work and asked her what
she thought about the Union; (2) she told Sturgill that she had not thought any-
thing about the Union;,(3) Sturgill then asked if she had signed a union card; and
(4) she told him that she had not signed a union card. Harden testified that
Sturgill told her that an attempt had been made to get a union in before, that it
had not done any good, and that if the Union gets in the new people would get
laid off. Harden further testified that Sturgill talked to her every day thereafter and
told her that it would not do any good to sign a union card because the Union:
would not get in. Foreman Sturgill denied asking Harden if she had signed a
union card, and testified that he was not at work on July 5, 1963, but was on,
vacation.
The General Counsel's complaint originally alleged in effect that Foreman Sturgill
interrogated employees concerning their union activities on July 11 and 16, 1963.
Early in the hearing the General Counsel moved to delete from his allegation with
reference to Sturgill the date July 11, 1963, and amended the complaint to allege
that Dollie Hensley was a supervisor and that Hensley had engaged in illegal inter-
rogation of employees concerning union activities on July 11, 1963. The only
specific complaint allegation in the proceeding with respect to Sturgill is whether
he engaged in illegal interrogation concerning union activities of employees on
July 16, 1963.
The only evidence adduced with respect to Sturgill's alleged illegal interrogation,
concerning union activities is the testimony of Harden. On direct examination
Harden clearly testified to the effect that Sturgill was not at work on July 5, 1963,
the first day she worked. Later on direct examination Harden testified clearly to
the effect that Sturgill interrogated her concerning the signing of a union card on the
afternoon of the first day (July 5) that she worked. From my, observation of
Harden I am convinced that this contradiction in her testimony was not the con-
fusing of July 8, 1963, with July 5, 1963. I found Sturgill more credible as a witness
than I did Harden and credit his testimony to the effect that he had not questioned
Harden concerning the signing of a union card. I discredit Harden's testimony in
its entirety. The General Counsel has not established that Sturgill engaged in illegal
interrogation of employees concerning union activities.
Based on the credited'uncontradicted testimony of NorafAlice Williams.
760-577-65-vol. 14 8-7 8
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. President Philpdtt's• threats 12
On July 9, 1963, President Philpott engaged in a conversation with Woody Wood-
hard in the restroom. Employee Gibson walked into the restroom and overheard
part of the Philpott-Woodhard conversation. Philpott during the conversation also
spoke to Gibson. The event is revealed by the following credited excerpts from
Gibson's testimony:
A. I walked into the rest room around 11:00 or 11:30 and I heard Philpott
talking to this-Woody. He said, "If the sons of bitches want an election we'll
give them a god damned election. Then he looked over to me and said, "You're
a union man, you signed one of those damned cards." I says, "How's that?" He
repeated, "You're a union man and you signed one of those cards." I said
"You're crazier than hell." He jumped up and said, "I'll tell you one damn
thing, a year from now anyone signing one of those union cards, if the union
don't go in, will be fired."
Q. Did he say "fired?"
A. He said they wouldn't be around.
The aforedescribed conduct of President Philpott constitutes Respondent's con-
duct violative of Section 8 (a) (1) of the Act. I so conclude and find.
C. Discriminatory and alleged discriminatory terminations and layoffs, miscellaneous
acts, and alleged acts of interference, restraint, and coercion
1. The discriminatory termination of William A. Middleton 13
William A Middleton was initially employed by the Respondent around
April 1963. Middleton, as the employee who preceded him had done, commenced
to do certain welding on "kilns" sold by the Respondent. Certain other welding on
the same "kilns" had been and continued to be performed for the Respondent by
Jedway Corporation. Maintenance employees of the Respondent also did some
welding in connection with their particular duties.
On occasion, prior to June 14, 1963, Assistant Superintendent Sheads, Superintend-
ent Smithers, and other Respondent officials had discussed the problem of welding
costs. During this time, on occasion, James Wheeler for Jedway Corporation had
proposed that Jedway Corporation do all of the kiln welding for the Respondent.
Around June 14, 1963, when Respondent was approaching its busy season, Middle-
ton commenced asking for additional welding help.
Middleton's request for additional welding help triggered Respondent's concern
over its welding costs.14 Smithers directed Sheads to check into the comparative
welding costs as between subcontracting and doing the welding in the plant. Sheads
contacted Wheeler for Jedway and was asked to prepare certain cost estimates of
the welding then performed on the kilns in the plant. Sheads prepared such esti-
mates between June 14 and 20, 1963, and submitted them to Jedway Corporation.
Around the last week in June, Wheeler, for Jedway Corporation, informed Sheads
and Smithers of the welding cost that would be involved and told Respondent that
it would result in a 5- or 10-percent savings for the Respondent. Sheads told
Wheeler that it "sounds like you got a job." 15
Employee Leslie Lee gave Middleton a union card on July 1, 1963. On July 3,
1963, Foreman Schell approached Lee at work, asked him if anyone had approached
him with a union card or anything, and told Lee that Superintendent Smithers had
13 Based on Shelby Gibson's uncontradicted testimony.
"Based on a composite of the credited testimony of Lee, Sheads, and Smithers.
14 Whether Respondent's concern over the welding costs occurred before Middleton's re-
quest for help is not clear. The evidence does not reveal specifics as to the welding costs,
but I find it reasonable to believe that management would be aware of its production costs
even on a general basis
16I do not find that this reveals that a final decision was made to subcontract the weld-
ing performed by Middleton at this time. In answer to another question by his counsel
placing the time of "decision" in July, Sheads offered no dissent. Sheads also testified in
effect that there were things to "get squared away" including the fact that Respondent
must "work off some of our material." Considering this testimony, the commencement
of Jedway Corporation in obtaining material from the Respondent, and the credited evi-
dence that Smithers, after learning of Middleton's union activity during the first week of
July 1963, stated that he was "thinking" of closing the welding shop and letting Middle-
ton go, I am convinced that final decision to subcontract was not made at this time.
AMERICAN ART CLAY COMPANY, INC. 1219
told him that he (Smithers) had heard that Art (Middleton) had passed out union
cards and that he (Smithers) was thinking of closing the welding shop down and
"letting Art go." 16
Sometime after July 1, 1963, and after Superintendent Smithers' conversation
with Foreman Schell, the Respondent entered into an arrangement with Jedway
Corporation as to additional subcontracting for welding (then performed by Mid-
dleton), and Jedway Corporation commenced picking up material from the Re-
spondent, which had been notched and bent for welding, and transported the same
to Jedway Corporation.
On July 5, 1963, Middleton was terminated, from his employment at Respondent.
Since July 8, 1963, Respondent has continued to use, on occasion, several em-
ployees to grind, cut off, and notch some of the material it has on hand. Since
July 8, 1963, Jedway Corporation has- otherwise performed the welding formerly
performed by Middleton. It may be summarized that Respondent has maintained
welding material inventory and has kept its welding equipment. Assistant Sheads
credibly testified that the transfer of the long welding rods from Respondent's site to
Jedway Corporation site would necessitate the use of a truck, which Jedway Corpo-
ration did not have, or the rental of a truck. • Sheads also credibly testified that
certain additional supplies (top material) had been purchased to balance out the
inventory (with bottom material), and that Jedway Corporation was to take over
the notching, grinding, and cutting off functions when the Respondent could "balance
out." Sheads testified credibly to the effect that Jedway Corporation would take
over all the welding when it could carry the "load."
The General Counsel contends that the Respondent was discriminatorily motivated
in its termination of Middleton. The Respondent, on the other hand, contends it
had decided to discontinue its welding because of cheaper costs from contract weld-
ing and that its termination of Middleton was thus not discriminatorily motivated.
I credit Respondent's witnesses Smithers and Sheads to the effect that they were
informed in June 1963 that their welding costs would be cheaper by the subcontract
method, and I credit Woltz' testimony to the effect that his cost study, after sub-
contracting had been commenced, revealed that the subcontracted welding was
overall cheaper than the plant welding.17 Sheads' testimony as to his preparation of
cost estimates to be submitted to Jedway Corporation and the problems involved,
the commencement of the subcontracting of the welding with the problems of
Respondent's inventory, transportation of material, and need to continue some of
the related welding by Respondent, convinces me, when considered with Superintend-
ent Smithers' statement to Foreman Schell (to the effect that he had heard of
Middleton's union activity and was thinking of closing the welding shop and letting
Middleton go), and when considered with the evidence of union animus and pre-
textuous discriminatory discharge revealed by the evidence, that Respondent rushed
into its subcontracting venture at the time in order to rid itself of Middleton be-
cause of Respondent's belief of his union activity. I thus conclude and find that
Respondent discriminatorily terminated William A. Middleton's employment on
July 5, 1963, in violation of Section 8 (a) (1) and (3) of the Act.
2. The July 8, 1963, layoffs 18
On July 8, 1963, the Respondent laid off employees Sharon Brackett, Ludene
Burnett, Phillip H. Carlisle, Eva Dillehay, Tillie Ellison, Jesse Lynn, and Clarence
Sprinkles, Jr.,19 and Martha L. Smith was laid off on July 9, 1963. All of the afore-
1e As indicated in section III, B, this conduct of Schell constitutes Respondent's con-
duct violative of Section 8(a) (1) of the Act. Smithers, on direct examination, denied
knowing of Middleton's union activity and denied conversing with Schell about Middle-
ton's or other employees' union activity. On cross-examination Smithers admitted know-
ing of Middleton's union activity before his discharge, and stated he possibly learned it
from his foreman I discredit Smithers' denial of knowing about Middleton's union
activity before his termination and I discredit his denial that he'had a conversation with
Schell about Middleton's union activity. I accord probative value to Lee's testimony as
to what Smithers said to Schell, since I do not find the same contradicted by credible
evidence See Orenduff & Rappel, Inc, 118 NLRB 859
17 The General Counsel attacked Woltz' qualifications and his cost study. I observed
him carefully and questioned him as to the basis of his study. I am convinced from his
demeanor and testimony as a whole , that his "on the job" training and his general quali-
fications are adequate, and that his "study" is reasonably adequate and accurate.
3s Based on a composite of the credited testimony of Burnett, Lynn, and Carlisle and a
stipulation of the parties as to dates of layoffs and recalls and payment for lost time.
19 James A . Lewis was discharged on July 8, 1963.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said employees were recalled, or offered recall, to work on July 11, 1963, except
Jesse Lynn, who was offered recall to work on July 12, 1963. It was stipulated
that all of the aforesaid employees had been paid for their lost time zo
a. Jesse Lynn
'Jesse Lynn was active in the union organizational activities. On June 29, 1963,
he secured lists of names from fellow employees and took the lists to the Union.
Lynn talked to employees and thereafter distributed union cards and solicited em-
ployees to sign union cards.
Lynn was laid off by the Respondent on July 8, 1963. During the day Helen.
Parks, Lynn's foreman, told Production Manager Carl Ellis that he (Ellis) would
have to get someone to help Lynn, that Lynn could not keep the stock up, and that
it was too hard on Lynn.
Around 3:45 p.m. on July 8, 1963, Superintendent Smithers approached Lynn in
the little room where chalk is stored and told Lynn that he (Lynn) had been-pass-
ing cards 21 Lynn did not say anything. Smithers then asked Lynn to tell him
how many cards he had passed. Lynn would not answer. Smithers told Lynn that
he (Lynn) would be "sorry."
Considering the foregoing, I conclude and find that Superintendent Smithers' con-
duct constituted illegal interrogation concerning union activity and an implied threat
of retribution because of union activity. This Respondent conduct is violative of Sec-
tion 8 (a) (1) of the Act.
• At the end of the workday Lynn started to check out and discovered that his time-
card was gone. Lynn asked Foreman Parks why his timecard had been pulled.
Parks told Lynn that he was a new employee, that she had been on vacation and
he had quit while she was gone, and that he was a new employee there.22
The next day Lynn went to see Superintendent Smithers and asked why he was
fired. Smithers told Lynn that he was not fired, that part of his job was eliminated
and the rest of his job was transferred to Boles' department. Lynn told Smithers.
that he knew why he was fired. Smithers told Lynn that he was not fired. Lynn
then asked for a layoff slip and was given one. Smithers told Lynn that he was.
not going to put anything on the layoff slip; that Lynn was dishonest. Smithers
filled out the layoff slip checking as the reason for the layoff-"no work available."
Lynn told Smithers that "We'll see about this." Smithers told Lynn that it was
either him or his son, that it did not make any difference to him that Lynn's son,
carried seniority over Lynn, and that Lynn had quit and come back to work.23
Lynn then left.
Lynn was offered recall to work on July 12, 1963.
Smithers testified, but I do not credit his testimony, to the effect that Lynn was
recalled to work on July 12, 1963, because orders got heavier in colored chalk
and the work was a little too heavy for the girls over there, that therefore a job
was open. Smithers' remarks concerning Lynn' s and Claybourn's seniority status,
and his alleged indifference as to who would be retained, casts great doubt that
seniority was involved. Considering the evidence as a whole I am convinced that
seniority was not the basis for selection . The Respondent' s personnel card for
Lynn also does not bear close scrutiny. Smithers' testimony reveals that the remark
"job discontinued" was added on July 15, 1963, with reference to the July 8, 1963,
layoff, when remarks had already been entered that Lynn had not reported or come
in answer to a July 10, 1963, wire.
20 The date that the employees were paid for lost time is not revealed in the record.
21 Superintendent Smithers denied having a conversation with Lynn concerning the
Union. Lynn's demeanor was that of a truthful, frank, and forthright witness. Smithers'
testimony in general was unimpressive and his demeanor was not frank. I credit Lynn's
.testimony to the effect set out herein and discredit Smithers ' version.
22 Lynn had previously worked for the Company, quit, and had been reemployed in
June 1963. I credit Smithers' testimony to the effect that the Respondent 's seniority
policy accorded seniority to Lynn only from the date of the last hire.
23I credit Smithers' testimony to the effect that Lynn's son, Ernie Claybourn, had com-
pany seniority over Lynn. I discredit Lynn's testimony to the effect that Claybourn did
not run the finger paint homogenizer. Lynn possibly believed the question related to the
homogenizer in Parks' department, and did not relate the question to Claybourn' s running
the homogenizer in Boles' department. The Respondent contends that this reveals that
the layoff was not discriminatory. The evidence reveals that Claybourn had received a
union card from Carlisle. In any event, I do not see that presenting Lynn with the
choice of his or his son's layoff reveals a nondiscriminatory motivation in the facts of
this case.
AMERICAN ART CLAY COMPANY, INC. 1221
Considering all the evidence herein, including Smithers' interrogation of Lynn, the
availability of work, Smithers' statement to Lynn that he would be sorry, the pay-
ment to Lynn for wages lost during the layoff, the other discriminatory pretextuous
discharges set forth elsewhere in this Decision, and the credited union animus of
the Respondent, I am convinced that the reasons advanced by Parks and Smithers to
Lynn for his layoff were pretextuous reasons and that the evidence preponderates
in- favor of a finding that Lynn was discriminatorily laid off to discourage union
activity. I so conclude and find that Respondent violated Section 8(a)(1) and
(3) of the Act by the termination of Lynn's employment on July 8, 1963.
b. Ludene Burnett
Ludene Burnett signed a union card on July 3, 1963. Burnett credibly testified
that there were several new employees hired by the Respondent on July 5, 1963.
,One of the new employees was assigned to the crayon department, a girl named
Judy King.
Burnett worked on July 8, 1963. At quitting time there remained 200 gross of
railroad chalk to pack. Burnett on July 8, 1963, had packed 100 gross of 300 gross
to be packed. At quitting time Burnett discovered that her timecard was not in the
timecard rack. Burnett asked her foreman why she (Burnett) did not have a time-
card. Burnett's foreman said in reply, "They didn't get you too, did they?" Burnett
asked for her check and was told to wait. Burnett waited and received two checks
paying her in full, but received no termination slip. Two employees in Burnett's
department, with less seniority than Burnett, were not laid off.
On July 9, 1963, Burnett called Smithers and asked why she been laid off.
Smithers told her that the "New York Order" had been canceled and that the
"younger" employees had been laid off first.24 Burnett was recalled to work on
July 11, 1963, reported to work on Monday, July 15, 1963, and commenced packing
the railroad chalk that she had been working with on July 8, 1963.
c. Phillip Carlisle
Phillip Carlisle had worked for the Respondent for" several weeks at the time of
his layoff on July 8, 1963. Prior to his layoff and after July 1, 1963, Carlisle had
signed a union card and had talked concerning the Union to several other fellow
employees.
On July 8,. 1963, Carlisle was working on a chalk order for the New York City
schools. Foreman Boles had a conversation with Carlisle during the day in which
Boles stated that he did not know how they would get the New York order done
in time, that they were only a little over half done. Around 4:30 p.m. Carlisle
heard that the timecards were being removed from the timecard rack. After check-
ing, Carlisle found that his timecard was missing. Carlisle sought his foreman
(Boles) and asked why his card had been pulled. Boles told Carlisle that the
New York order had been canceled and that he would have to be laid off. Boles
was then paid off for his work. An employee with less seniority than Carlisle was
retained for work 25 Carlisle was recalled for work on July 11, 1963, and worked
,on the same New York order that he had been working with on July 8, 1963.
At some unknown date Carlisle has been paid by the Respondent, for some un-
specified reason, for the time he lost on layoff.
Considering all the facts relating to Burnett's and Carlisle's layoffs, I am con-
vinced that the Respondent was discriminatorily motivated in their July 8, 1963,
layoff. The Respondent's layoff policy in effect contemplated layoffs according to
seniority. The facts reveal that the Respondent did not lay off Burnett and Carlisle
according to their seniority. Burnett and Carlisle were both working on orders
for which there was additional work to be done and which was done by them upon
their recall. The Respondent, for an unexplained reason, made Burnett and Carlisle
whole for their wages lost during their layoffs. Both Burnett and Carlisle were
told that the reason for their layoff was the cancellation of the New York order
and yet both worked on the same New York order upon their return. Both
Burnett and Carlisle engaged in union activity prior to the time of their layoff.
Absent credible testimony to establish that the New York order was canceled and
reinstated, I find it proper to infer and do infer that the New York order was not
canceled, and that the reasons advanced to employees Burnett and Carlisle were
pretextuous. Under the circumstances, the evidence of widespread union activity,
24 No evidence was offered by the Respondent to refute Burnett's assertion to this effect.
25 No evidence was offered by Respondent to refute this assertion by Carlisle.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and established general knowledge of employees' union activities, I find it proper
to infer and do infer that the Respondent had knowledge of Burnett's and Carlisle's
union activity at the time of their July 8, 1963, layoff. The layoffs of Burnett and
Carlisle for pretextuous reasons, out-of seniority, and with knowledge of their union
activity, in connection with the Respondent's union animus as revealed by its illegal
interrogation, and threats and its other discriminatory discharges and layoffs found
in this case and with Respondent's unexplained payment to them for wages lost as
a result of their layoff, reveal that the Respondent was discriminatorily motivated
in its layoffs of Burnett and Carlisle.' I so conclude and find that the Respondent
discriminatorily laid off employees Burnett and Carlisle on July 8, 1963.
At some date between July 10 and 15, 1963, the Respondent sent a letter to its
employees designated as Employee Bulletin No. 1. In this bulletin the Respond-
ent informed its employees as follows: ,
EMPLOYEE BULLETIN No. I
Statement by the American Art Clay Company for the benefit of our em-
ployees and especially for our new ones as we are sure that they do not under-
stand all the benefits obtainable from the American Art Clay Co. We suggest
that they discuss these with the older employees as they understand the advan-
tages of working with the American Art Clay Company under present condi-
tions. Some of the older employees will remember the union. They can
tell you about the trouble everyone had. Under these conditions the com-
pany had to cut out some unprofitable items which eliminated some jobs: It
is possible that the present working force would be reduced by 50%. On top
of all the trouble you will have to pay dues of several dollars a month, and
from time to time special assessments from the union.
The fact that anyone has signed a card stating that he would be interested
in a union for the American Art Clay Company does not mean that you have
to vote for the union if and when we have a certified election by the United
States Labor Board. The election is a secret ballot. All employees working
will have the privilege off voting regardless of whether they have or have not
signed a card. No one knows how you vote and no one will find out If a
card has been filled out and delivered to a union organizer, this can be ignored
in the actual election by voting the way you prefer-for the company or for
the union. If you ask an employee who had been here for some time he will
be able to tell you that we have worked 52 weeks each year. Our past ex-
perience has shown that continuous employment under union organization is
highly improbable.
We hope you will continue to go along with our present status as we know
that you will be able to receive the benefits as in the past.
...THE MANAGEMENT
The Respondent contends that since there is no contradictory evidence, the only
inference that can be drawn from the facts in the record is that the New York City
order, on which work was being performed on the morning of July 8, 1963, was
canceled before the close of work on July 8, 1963, but was reinstated on July 11,
1963, at which time employees who were laid off for this reason were recalled to
work. I do not draw such an inference. It is clear that the New York City order
was not completed on July 8, 1963, and that employees Carlisle and Burnett, when
recalled, worked on the same order. In view of all the evidence, the payment to
the employees for their loss of time for unexplained reasons, and the failure of
Respondent to adduce evidence in support of the alleged cancellation of the New
York order, I find that the evidence preponderates for a finding that the layoffs were
not caused by the cancellation of the New York order.,
I find no specific evidence to reveal that employees Sprinkle, Smith, Brackett,
Dillehay, and Ellison engaged in union or concerted activity, or that the Respond-
ent had knowledge of union activity on their part. Witness Carlisle testified that
he gave a union card to an employee named Eva who apparently worked in the
white chalk department. Dillehay's first name is Eva, but no evidence was adduced
to reveal that Sprinkle, Smith, Brackett, Dillehay, or Ellison worked in the white
chalk department.
The unexplained action of the Respondent in paying these employees their wages
lost during their layoffs is very suspicious. The theory of General Counsel's com-
plaint was to the effect that the employees were laid off because they-joined-or
AMERICAN ART CLAY COMPANY, INC. . 1223
assisted the Union or engaged in other union activity or concerted activities for the
purpose of collective bargaining or mutual aid or protection. ^ At the hearing I
questioned the General Counsel as to his theory of company knowledge of the
employees'. union activity. The General -Counsel indicated that he was not con-
tending that the Respondent had direct knowledge of the employees' union activity.
He stated that his theory was that of a mass layoff, intimidation, and a design to put
the employees in their place.
The General Counsel did not contend that he was arguing a "small plant" theory
of company knowledge. In his brief the General Counsel asserts as follows: "What
reason could there have been to break with the Company's established policies and
lay off a sizeable percentage of the chalk department unless it was to rid itself
of the union adherents and frighten all others into abandoning the Union."
In the context of my question to the General Counsel and his answer thereto, I
understood the General Counsel's theory, in connection with his complaint al-
legations, to be that company knowledge of union activity of the laid-off employees
should be inferred. His brief supports this understanding. Considering the fore-
going and the evidence, I am convinced that Respondent conducted its defense on
the foregoing assumption
In conclusion, I find no evidence to reveal that Sprinkle, Smith, Brackett, Dillehay,
or Ellison worked in the chalk department, nor do I find evidence that any of these
employees engaged in union or concerted activity. Under these circumstances I
find it improper to infer that these employees engaged in union or concerted activities
or to further infer that the Respondent had knowledge of such inferred union or
concerted activities. Accordingly, although suspicious, I do not find that the
evidence reveals that Smith, Brackett, Sprinkle, Dillehay, or Ellison were laid off
on July 8 or 9, 1963, because they had engaged in union or concerted activities.
d. James Lewis 26
James Lewis was first hired by the. Respondent in July 1961 and worked for
the Respondent until he voluntarily quit in July 1962. Lewis applied for rehire
and was rehired in August 1962. Lewis worked until October 1962, when he was
fired by Superintendent Smithers for "drinking." Lewis was thereafter unable to
obtain work until he asked Superintendent Smithers to rehire him, at which time,
February 1963, Smithers rehired Lewis. At the time Lewis asked Superintendent
Smithers for reemployment, he (Lewis) told Smithers that he was in debt and
needed a job. Superintendent: Smithers told Lewis that he (Smithers) had a job
for him but that he had to leave the "bottle" alone. Smithers told Lewis that he
was on probation.27
Around June 25, 1963, Lewis left work at noon one day without receiving per-
mission to do so. The Respondent gave Lewis a warning slip the next day for being
absent without permission. About this time 28 Foreman Schell criticized Lewis for
smoking outside the building. Lewis had been in the incinerator and was on his
way back to the building. Lewis had lighted a cigarette and was smoking while
walking back. Schell caught Lewis as he was coming in the side door to the weld-
ing room and told him, "Jim, if I catch you smoking in this lot again,,you and me
are going to fight right here on the spot."
James Lewis signed a union card around July 1, 1963. Lewis also handed three
or four other employees union cards. Foreman Frierson learned that Lewis had
passed some union cards and reported the same to Superintendent Smithers 29
26 Based on a composite of the credited testimony of Lewis, Smithers , and Frierson.
' It is undisputed that Smithers warned Lewis about the "battle." I find it completely
reasonable and believable and I credit Smithers' testimony that he told Lewis he was on
probation. I do not find it significant under such circumstances that a notation of "pro-
bation" was not placed on Lewis' personnel card.
20 Lewis' testimony was to the effect that this occurred several weeks before his dis-
charge on July 8, 1963, and after the June 25, 1963, warning
'Frierson testified that he learned of Lewis' union activities around the second week
in July 1963 and reported the same to Superintendent Smithers. There would have been
no need to make such a report to Smithers after Lewis was discharged I found Frierson
to appear evasive in this area of testimony and am convinced'that he learned of Lewis'
union activity and reported the same to Smithers prior to Lewis' discharge on July 8,
1963. I do not credit either Frierson's or Smithers' testimony to the effect that Lewis'
union activity was not known prior to Lewis' discharge.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 8, 1963, around 9:15 a.m., James Lewis went to the back restroom,
described as the colored restroom, and engaged in normal usage of the same. Upon
completion of such usage, Lewis turned around and lit a cigarette. After taking
several puffs on his cigarette, Lewis heard Foreman Schell, who had just stuck his
head through the restroom doorway, tell him that he (Schell) wanted to talk to him
when he left the restroom. Lewis put his cigarette out and started to return to
his work area. Schell motioned to him and Lewis approached Schell at a spot de-
scribed as the "cage."
Foreman Schell told Lewis' that he was-going' to have to give him a warning
ticket. Schell asked Lewis if he could not wait until 5 minutes after 10, the coffee
break, to go to the restroom 30 Lewis informed Schell, "No, after my operation
I can't."
Foreman Schell reached into his pocket and pulled out a number of warning
slips. Lewis saw that some of the slips were completed, at least as to the names of
the employees involved. Foreman Schell took the warning slip with Lewis' name
on it and wrote on the slip in the spot marked "Nature of 'Violation," "smoking in
the colored restroom," 31 and gave the same to Lewis. Lewis asked Schell why
he (Schell) gave him the slip.. Schell stated, that he did not think he was going
to let Lewis go back to work. Schell then left apparently to go to the office. Lewis
remained at the "cage" waiting for Schell's return. Foreman Schell was gone for
some time. Schell then returned, took the warning and suspension slip from Lewis,
and wrote on it "missing from job during work hours" and gave the slip back to
Lewis. Lewis asked Schell to get him a slip showing whether he was fired or laid
off.32 Schell left again and returned and told Lewis that Smithers would not give
him such a slip.
Respondent witness Lienert's testimony was to the effect that, at Schell's request,
he had looked for Lewis, had found Lewis in the colored restroom, had reported
this to Schell, and had gone back with Schell and found Lewis still in the restroom
smoking a cigarette. Lienert's testimony was to the effect that this took what was
more than would appear to be normal time spent in a restroom. Lienert impressed
me as a witness whose testimony was not trustworthy in any respect. I do not
believe that he would have engaged in a mission as testified to and then have no
remembrance of what the warning slip had on it as Lienert testified to on cross-
examination. I believe Lewis' testimony to the effect that Lienert's signature was
on the warning slip when it was first shown him. I do not believe Lienert was
either a witness to the event testified to by him, nor do I believe that he signed a
warning slip after it was completed. I am convinced that the evidence reveals that
Lienert signed a blank warning and suspension slip. Although the General Counsel
presented some corroborative type evidence to the effect that Lienert was similarly
used as to other warnings, I do not find such other evidence independently persuasive
and find it unnecessary to consider such evidence in coming to my conclusion herein.
The Respondent contends, in effect, that Lewis was discharged because he was
away from his job too long. The Respondent argues that the fact that the rest-
room Lewis went to was farther from his work station than another he might have
used, lends weight to the evidence that he was away from his job too long. The
restroom that Lewis visited was only a matter of a few feet farther from his work
station than the other restroom. I do not find this contenion persuasive. Schell's
completion of the warning ticket by adding first "smoking in the colored restroom"
and later adding "missing from job during work hours" reveals that Schell was
confused as to what he should put on the ticket. I am convinced, considering all
the facts, that the asserted reasons were pretextuous.
Considering, all the foregoing, including the pretextuous nature of other dis-
criminatory discharges and the union animus displayed generally by the Respond-
ent, I am convinced that Schell was motivated in his termination of Lewis by his
-desire to rid the Respondent of a known union adherent. I conclude and find that
Respondent's termination of James Lewis on July 8, 1963, constituted a violation
of Section 8 (a) (1) and (3) of the Act.
m Lewis, who had had an operation of some type, had previously informed Superin-
tendent Smithers and Foreman Schell about problems, apparently of a kidney nature.
Smithers had previously, in this connection, sent Lewis to a clinic for a checkup.
31 Respondent had no rule against smoking in the restroom . In fact smoking was per-
mitted in the restroom.
"In view of Schell's prior statement that he did not know whether be was going to let
Lewis go back to work, I find it reasonable that Lewis would ask this question.
AMERICAN ART CLAY COMPANY, INC.' 1225
3. The alleged discriminatory termination of Sylvester Brown
a. Alleged threat by Superintendent Smithers
Sylvester Brown testified that toward the latter part of January 1963 he over-
heard William Graham 33 ask Superintendent Smithers, in effect, what was it that he
was hearing about the Union. Smithers told Graham, in effect, that the employees
were damn fools to know anything about a union, and that the first time that he
(Smithers) heard anything concerning the Union that he would fire the employee.
Both William Graham and Superintendent Smithers denied such a conversation.
Although in many respects I found Smithers not to be testifying truthfully, I found
Graham's- demeanor to be that of a truthful witness. Sylvester Brown did not
impress me as a reliable witness. I am convinced that he was attempting to falsely
tell a story that would help his own case. I credit Smithers' and Graham's denial of
the alleged Smithers-Graham January 1963 conversation.
b. The termination of Sylvester Brown 34
Sylvester Brown was first hired by the Respondent in June 1959 and worked
until June 1960 when he quit. In January 1963 Brown reapplied for work and
was rehired by the Respondent. In 1959 and 1960 Brown had worked in the crude
clay department under Foreman Frierson and had performed different jobs.
Brown in 1963 first worked in the millroom of the clay department. In March
1963 the Respondent was thinking of laying Brown off. Foreman Frierson, who
needed a man to bag dry clay, asked that Brown be transferred to his department.
Brown was transferred to Frierson's department and was employed primarily at
bagging nonformula dry clay 35 Several days before the end of June 1963 Brown
asked his foreman for permission to have 2 weeks off. At this time the stock of
bagged nonformula dry clay was at a very high peak. Brown was granted the
right to be absent for 2 weeks.
The last several days of June 1963 Brown discussed unionism with fellow em-
ployees and obtained names and addresses of some fellow employees. Brown
turned the names and addresses over to employee James Lewis for transmission to
the Union. Foreman Frierson learned of Brown's union activity about the first
of July 1963 and reported the same to Superintendent Smithers.
Sometime in the middle of the second week in July 1963 Foreman Frierson in-
formed Superintendent Smithers to the effect that the nonformula dry clay inven-
tory was to such a peak that he did not have enough nonformula dry clay bagging
work for Brown to do. Smithers told Frierson that they would let Brown go.
Brown returned to the plant on July 15, 1964, and discovered that his timecard
was not in the time rack. What happened thereafter is revealed by the following
excerpts of Frierson's credited testimony:
A. That was on the 15th of July, on Monday. When he came in I called
to him and told him we was going to have to lay him off. He said, "Okay,"
'3 The transcript at page 173 and thereafter describes the person involved as Grimm
From the record as a, whole I am convinced that the person involved was William
Graham and I so find
34 Based on a composite of the credited testimony of Sylvester Brown, Foreman Frierson,
Superintendent Smithers, Peacher, Sam Lewis, and Charles Berry. In many respects I
did not find Sylvester Brown a credible witness. I am convinced that he did not truth-
fully testify as to the amount and type of work that he was performing or as to what
transpired between Frierson, Smithers, and himself at the time of his layoff. Thus I am
convinced that Brown, in an attempt to clearly make his layoff appear discriminatory,
testified falsely to the effect that Frierson stated that he would like to say more but that
it would cause him (Frierson) trouble. I am also convinced that Brown falsely testified
to the effect that Smithers told him at the time of Brown's layoff that he knew that
Brown was getting names for this union, that Brown was a troublemaker and instigator
In the same manner, Smithers was not a trustworthy witness. I am convinced that
Smithers denied that "Union" was mentioned in an attempt to avoid any reference that
might indicate that Brown's layoff was for a discriminatory reason. Frierson's testimony
as to the layoff event appears credible and I so credit.
as Nonformula dry clay is dry clay purchased "as Is" and bagged without other
processing
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but he wanted to see Mr. Smither first. I told him I would go up to the office
with him, and on the way up to the office we met Mr. Smither coming down
the hall making his morning rounds. Brown asked him why was he getting
fired. Mr. Smither told him, "You're not getting fired, just have to lay you
off because we don't have anything for you to do." He told him, "If it'has
anything to do with this union I want you to know I don't have anything to do
with it." Mr. Smither said, "I haven't mentioned a Union."
The layoff of Sylvester Brown, known .by Respondent to have engaged in union
activity, is very suspicious. I am convinced that Brown was a good employee and
possessed skills to do work other than that of bagging nonformula dry clay. It is
clear that Frierson was cognizant of Brown's abilities from his past work tenure
and had asked for him in early 1963 when Brown was about to be laid off in
another department. I find it suspicious that Respondent did not locate another
job for Brown. However, in the absence of evidence that the Respondent had need
for Brown at the time of his layoff for another job, I do not find that the evidence
preponderates for a finding that Brown was discriminatorily laid off.
As indicated, I have not credited Sylvester Brown's testimony to the effect that
Smithers stated in effect on July '15 that Brown was being let go because of his
union activity. Accordingly, I also find that the evidence does not independently
reveal a threat by Smithers to Brown on July 15, 1963. Thus the evidence, in
this regard, does not support a finding as to this event that Respondent violated Sec-
tion 8 (a) (1) of the Act.
4. Events concerning Eaton
a. Supervisory status of Hensley
The General Counsel contends that Dollie Hensley was a supervisor, and that
Hensley illegally interrogated employee Eaton. Hensley's supervisory status is dis-
puted by the Respondent. Certain facts as to Hensley's status are not disputed.
A composite of credited facts based upon Foreman Sturgill's and Superintendent
Smithers' credited testimony reveals that, at the time of the hearing in this matter,
Hensley was an employee with some 16 or 17 years' service with the Respondent,
that Hensley was qualified to do any job in the permaplast department, that Hensley
was an hourly paid employee, that Hensley worked mostly on samples and special
orders, and that employees often asked Hensley for advice.
During the week July 3 through 5, 1963, Foreman Sturgill, who was over the
department in which Hensley worked, was off on vacation. Newly hired em-
ployees, Eaton and Harden, credibly testified that they were hired during the week
July 3 through 5, 1963, and were sent to Hensley who assigned them to their jobs.
Superintendent Smithers testified to the effect that during Sturgill's absence he made
the job assignments, and that Hensley did not make job assignments but did hand
out orders and give work orders. Smithers also testified that Production Manager
'Carl Ellis controlled the layout work in Sturgill's absence. , Employee witness Vaden
testified to the effect that during Sturgill's absence that Smithers and Ellis were in
charge. Foreman Sturgill testified that he did not know whether Hensley did -his
job when he was not there. Superintendent Smithers also testified that when he
hired Eaton and sent her to the permaplast (Sturgill's) department while Sturgill
was absent, that he did not know who she was sent to. I find Eaton's and Harden's
testimony to be credible as to the events concerning their employment. I did not
find Smithers' or Sturgill's testimony to be credible to the effect that Hensley exer-
cised no assignment functions and to the effect that Hensley did not give employees
instructions. Eaton and Harden, additionally, credibly testified to the effect that
during the time after Foreman Sturgill's return that Hensley gave them work as-
signments. I conclude and find that Hensley, by virtue of her exercise of job
assignment authority, was a supervisor within the meaning of Section 2(11) of the
Act at all times material herein.
i
b. Supervisor Hensley-interrogation
Reba Eaton's uncontradicted credited testimony reveals that on July 10 or 11,
1963, that Supervisor Dollie Hensley spoke to her. at Eaton's worktable and asked
her "if the union meeting was held at Inez' house." Eaton told Hensley, "No,
somewhere downtown." I conclude and find that Hensley's conduct, as described,
constituted Respondent's conduct violative of Section 8(a)(1) of the Act.
AMERICAN ART CLAY COMPANY, INC. 1227
c. The discriminatory termination of Reba Eaton
Reba Eaton was hired by the Respondent on July 3, 1963. Supervisor Hensley
initially assigned Eaton to a job packing 10K clay and she worked at this job until
some time after July 10, 1963.36 Supervisor Hensley next assigned Eaton a job
of feeding clay into a mill. Eaton worked at this job for approximately a week.
Supervisor Hensley then told Eaton that a girl was needed in colored chalk and
asked Eaton if she would go. Eaton told Hensley that she would. Eaton was
then assigned to work in colored chalk under Foreman Boles. Eaton worked for
several days thereafter at this job. On July 18, 1963, Eaton was off from work.
On the morning of July 19, 1963, Eaton received a warning slip from Foreman
Boles referring to a warning for absenteeism. At quitting time Boles terminated
Eaton's employment by handing her two checks and telling her that Smithers no
longer needed her.
Eaton, thereafter, sought Superintendent Smithers and asked for a slip stating
why she was laid off or•fired. Superintendent Smithers told Eaton that he could
tell her in just a few words why she was laid off. Smithers told Eaton that she
was laid off because her work was insufficient, that she was practically falling asleep
on the job. Eaton told Smithers that her work was not insufficient, that she had
"done more work or faster" than the rest of the girls back in the department.
Smithers gave Eaton a slip stating in effect that Eaton was laid off because she was
insufficient on her job, that Eaton had been given a 2-week trial period and had
not proven satisfactory, and that Eaton had not been fired
In support of its defense that Eaton was not discriminatorily terminated the Re-
spondent introduced evidence through employee witnesses Vaden and Gregory to
the effect that Eaton was not satisfactorily performing her job duties, and through
'Supervisors Smithers, Sturgill, and Boles to the same effect. Vaden and Gregory
exhibited by their demeanor and testimony a marked hostility toward Eaton. Fore-
man Sturgill did not testify to any warnings or reprimands but merely testified to
the effect that Vaden had complained about Eaton's work when he left Eaton.
Boles' testimony was to the effect that he observed Eaton performing her work im-
properly, warned her on 2 different days, noted no improvement, went to and re-
ported the same to Superintendent Smithers, that the decision was then made to let
Eaton go, that thereafter the warning slips, i.e., absenteeism, was given to Eaton on
the morning of July 19, 1963, and that Eaton was let go later. Smithers' testimony
was to the effect that he observed Eaton performing her work improperly, that he
went to Boles and asked Boles about the condition, and that the decision to lay Eaton
off was made before the last day. Considering all the foregoing, the fact that Vaden
and Gregory exhibited a marked hostility toward Eaton in their demeanor and
testimony, and the fact that Vaden and Gregory did not appear objective as wit-
nesses, I find that Vaden, Gregory, Sturgill, Smithers, and Doles are not credible
witnesses in their testimony referred to herein and do not credit their testimony.
I credit Eaton's testimony to the effect that she was never reprimanded concerning
her work.
In conclusion, I am convinced that the facts reveal that Eaton was laid off on a
pretext of alleged poor work when in fact the layoff was because of the Company's
knowledge of union activity on Eaton's part. I note that her transfer from packing
clay (10K) to the job of feeding the mill occurred shortly after Supervisor Hensley
had questioned Eaton about the location of a union meeting and that the initial
transfer occurred around the time of other pretextuous layoffs and discharges. The
giving of the warning slip for absenteeism after a decision to lay off has been made
without communicating the decision of layoff until some 6 or 8 hours later con-
vinces me, in view of all the facts, that the layoff in fact was to discriminate against
Eaton because of Respondent's knowledge or belief of her union activity. I so
conclude and find that Respondent's termination of Eaton constituted a violation of
Section 8 (a) (1) and (3) of the Act.
5. The alleged discharge of'Edward O. Ware
Edward O. Ware was initially employed in 1963 as a guard at Respondent's plant.
Around July 2, 1963, Ware signed a union authorization card. On August 24, 1963,
around 2:30 p.m. Ware was about to start his employment shift. President Philpott
came up and engaged in a conversation with Ware. Part of this conversation was
overheard by an employee named Settles.
80 As indicated' previously Supervisor Hensley questioned Eaton on July 10 or 11 as to
where a union meeting had been held. -
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ware, Settles , and Philpott testified as to the event . Settles, a witness for the
General Counsel , impressed me as a frank , forthright , and truthful witness. Both
Ware and Philpott impressed me as attempting to tell a version of the event only
favorable to themselves . I did not find Philpott or Ware to be objective witnesses.
I am convinced that Settles truthfully testified to what he heard . What Settles heard
is revealed by the following excerpt from his credited testimony.
The WITNESS: Told Ed he heard he was connected with the union . Ed asked
him who told him, so he never give him any . answer, just told him that if the
union got in our jobs would be eliminated . Ed says, "Well, I'll just quit." So
he asked him for the keys-he asked him to give him $25.00 for the keys.
Philpot said he didn 't know there was a $25.00 key deposit. I said, "Yes,
we all have to put a $25.00 deposit on the keys." He reach in his pocket and
handed him $25.00 and Ed left.
Ware's testimony was to the effect that the conversation concerning elimination
of the jobs if the Union came in occurred before he and Philpott approached Settles.
Ware's testimony was also to the effect that Philpott told him in connection with the
statement that the jobs would be eliminated if the Union came in , and that he
(Ware) was fired . Philpott's testimony was to the effect that he jokingly said
"Looks like if the union gets in we 're going to have a change of guards " and that
Ware said "I quit my job right now."
Settles' testimony although different from that of Ware and Philpott , appeared
to cover the entire area of the union conversation . I am convinced from Settles'
credited testimony that Philpott did not tell Ware that he was fired at the time that
Settles heard the conversation or before . I discredit Ware's testimony to the effect
that Philpott told him that he was fired . I also discredit Philpott's testimony to the
effect that he was joking.
Considering all the foregoing, I conclude and find that Philpott 's statement to the
effect that jobs would be eliminated if the Union came in .constituted a threat viola-
tive of Section 8(a) (1) of the Act. I further conclude and find that the facts do
not reveal that Ware was discriminatorily terminated on August 24, 1963, but rather
that Ware voluntarily quit his job. Although not argued by the General Counsel,
I do not deem the facts of the instant case to warrant a conclusion of a con-
structive discharge . The threat involved herein does not constitute , in my opinion,
the type of harassment intended to cause an employee to quit his job. Accordingly,
I conclude and find that the evidence does not establish that Ware was discrimina-
torily terminated on August 24, 1963, in violation of Section 8(a)(1) and (3) of
the Act. '
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic, and commerce upon the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that Respondent cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3) and (1) of the Act by
the discriminatory termination of James A. Lewis, William A. Middleton, and Reba
Eaton,37 it is recommended that Respondent offer to each of them immediate and
full reinstatement to their former or substaritially, equivalent positions, without
prejudice to their seniority and other rights and privileges, and make them whole
for any loss of earnings they, may have suffered by reason of such discrimination
by payment to each a sum of money equal to that which they normally would have
earned as wages from the date of their discharge to the said offer of reinstatement,
less their net earnings during such period, with backpay computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289, 294, and with interest thereon as prescribed by the Board in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
As to other discriminatees found herein , the evidence reveals that they have been
offered reinstatement and have been made whole for loss of wages.
AMERICAN ART CLAY COMPANY, INC. 1229
The evidence reveals that Respondent was planning to subcontract its welding
but accelerated its decision regarding the timing of such event in order to dis-
criminatorily terminate Middleton's employment. Such problems connected with
the time that Respondent would have implemented its subcontracting of welding
as it may affect the employment or length of Middleton's reinstated employment can
best be resolved in the compliance stage.
As the unfair labor practices committed by the Respondent were of a character
which go to the very heart of the Act, it is recommended that the Respondent cease
and desist therefrom and cease and desist from infringing in any other manner upon
the rights of employees guaranteed by Section 7 of the Act.
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. Local 135, International -Brotherhood -of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America is a labor organization within the meaning of Section
2(5) of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By discriminating in regard to the hire and tenure of employment of em-
ployees thereby discouraging membership in, or activities on behalf of, a labor
organization, Respondent has engaged in unfair labor practices within the meaning
of Section 8(a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 38
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that Respondent, American Art
Clay Company, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of, Local 135, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization of its employees, by discharging or oth-
erwise discriminating in regard to the hire or tenure of employment or any terms
or condition of employment of any of its employees,
(b) Interrogating its employees concerning their or other employees' union
affiliation or activities, or protected concerted activities, in a manner constituting
interference, restraint, or coercion in violation of Section 8(a) (1) of the Act.
(c) Threatening employees with the closing of the plant, discharge, decrease or
loss of benefits, or other reprisals because of their activity on behalf of Local 135,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or in any other labor organization of its employees.
(d) 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 labor orga-
nizations, to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed by Section 7 of the Act, and to refrain from
any and all such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to James A. Lewis, William A. Middleton, and Reba Eaton immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges.
In the event that this Recommended Order be adopted by the Board, the word
"Order" shall be deemed substituted for the words "Recommended Order." Additionally
there shall be deemed substituted for the first paragraph of the Recommended Order the
following paragraph:
Upon the entire record in these cases, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, American Art Clay Company, Inc., its officers, agents, successors,
and assigns, shall:
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole James A. Lewis, William A. Middleton, and Reba Eaton for
any loss of pay they may have suffered by reason of the discrimination against them,
by payment to each of them a sum of money equal to the amount they normally
would have earned as wages from the date of their discharge to the date of the
Respondent's offer of reinstatement in the manner set forth in the section entitled
"The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records, relevant or necessary to
the determination of the amounts of backpay due and to the reinstatement and
related rights provided under the terms of this Recommended Order.
(d) Post at its premises in Indianapolis, Indiana, copies of the attached notice
marked "Appendix." 39 Copies of said notice, to be furnished by the Regional'
Director for Region 25, shall, after being signed by the Respondent's representa-
tive, be posted by Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to 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.
(e) Notify the Regional Director for Region 25, in writing, within 20 days from
the date of this Recommended Order, what steps the Respondent has taken to com-
ply herewith40
As to the allegations of the complaint not specifically found herein to constitute
violations of the Act, it is recommended that such allegations be dismissed.
so In the event that this Recommended Order bc'adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a 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."
411n 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
Pursuant to a 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, we hereby notify our employees that:
WE WILL offer James A. Lewis, William A. Middleton, and Reba Eaton im-
mediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by reason
of the discrimination against them.
WE WILL NOT discourage membership in or activities on behalf of Local 135,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or in any other labor organization of our, employees, by
discharging or otherwise discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment of any employee.
WE WILL NOT interrogate our employees concerning theirs or other employ-
ees' union affiliation or activities, or protected concerted activities, in a manner
constituting interference, restraint, or coercion in violation of Section 8(a)(1))
of the Act.
WE WILL NOT threaten our employees with closing the plant, discharge, de-
crease or loss of benefits, or other reprisals because of their activities on behalf
of Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America.
WE WILL NOT in any other manner interfere with, restrain, or coerce any of
our employees in the exercise of their right to self- organization , to form, join,
HORNICK BUILDING BLOCK CO. 1231
or assist labor organizations , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of Local 135, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America , or any other labor organization.
AMERICAN ART CLAY COMPANY, INC.,
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 ap-
plication 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, 614 ISTA
Center, 150 West Market Street , Indianapolis, Indiana, Telephone No. Melrose
3-8921, if they have any questions concerning this notice or compliance with its
provisions.
Hornick Building Block Co. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Building Material & Construction Drivers, Helpers & Mate-
rial Handlers, Local Union No. 341 . Case No. 6-CA-291. Sep-
tember 22, 1964
DECISION AND ORDER
On June 26, 1964, Trial Examiner Alba B. Martin issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the General Coun-
sel filed a brief in answer to the Respondent' s exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
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, the briefs, and the entire record
148 NLRB No. 128.