Austin Powder Co.

National Labor Relations Board - Board Decisions

Mar 7, 1963

141 N.L.R.B. 183 (N.L.R.B. 1963)

AUSTIN POWDER COMPANY 183
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights under Section 7 of the Act.
WE WILL offer Paul Hetrick full and immediate reinstatement to his former
or substantially equivalent position , without prejudice to his seniority and other
rights and privileges , and make him whole for any loss of pay , plus interest,
suffered by reason of the discrimination against him.
All our employees are free to become, remain , or to refrain from becoming or
remaining members of International Chemical Workers, AFL-CIO, or any other
labor organization.
BARBERTON PLASTICS PRODUCTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Represontative) (Title)
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act 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, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland 15, Ohio , Telephone No. Main
1-4465, if they have any question concerning this notice or compliance with its
provisions.
Austin Powder Company and Local Union No. 215, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case No. 9-CA-259. March 7, 1963
DECISION AND ORDER
On October 31, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations 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 Intermedi-
ate Report and the entire record in the case, including the exceptions
and brief, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the following additions and
modifications.
1. We find, in agreement with the Trial Examiner, that by the
following conduct the Respondent violated Section 8(a) (1) of the
Act: (1) On March 27, 1962,' the Respondent's supervisors solicited
i Unless otherwise specified all dates are in 1962.
141 NLRB No. 20.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to sign a statement repudiating the Union; (2) on the eve-
ning of the same day, King, the Respondent's district manager, inter-
rogated employee Frye about union activities, asked her for the
identity of the leader of the union movement, and threatened her with
loss of employment; 2 and (3) on March 28, at a meeting of the em-
ployees called by the Respondent, King threatened to close the plant
if Respondent could not continue to operate it as an unorganized
plant.' We also agree with the Trial Examiner, and for the reasons
stated by him, that the Respondent did not adequately dissipate the
effects of this coercive conduct by posting a notice on March 31
allegedly repudiating such conduct.
2. We also find, in agreement with the Trial Examiner, that the
Respondent violated Section 8(a) (3) and (1) of the Act by discharg-
ing six employees between April 10 and May 8.4 However, we make
this finding solely for the reasons stated below. As described more
fully in the Intermediate Report, the Respondent is engaged in the
manufacture and sale of explosives and fertilizers and the distribution
of mine and mill supplies at Madisonville, Kentucky.5 On March 26,
the Union wrote to the Respondent, seeking recognition as representa-
tive of its Madisonville employees. The Union's letter was received
by the Respondent on March 27, and on March 30 the Respondent
rejected this demand for recognition. Between March 27 and 30, the
Respondent engaged in the above-described conduct, which included
unlawful interrogation of employees about union activity and unlaw-
ful threatening of employees with loss of employment and the shutting
down of the plant. The Respondent's efforts to discourage union ac-
tivity culminated with the March 28 meeting, at which time King told
employees that he would close the plant if it did not remain unorga-
nized. Eleven employees walked out of the meeting in protest over
2 We hereby correct that portion of the Intermediate Report in which Frye 's testimony
relating to King's remarks is quoted The record indicates that Frye testified that King
referred to the "trouble out at the plant," asked her if she knew who was "the head of
it . . . how long it's been brewing ," and to whom he could talk to get it stopped . In view
of the circumstances surrounding this conversation , it is clear, and we find , that, although
contrary to the Trial Examiner, King did not explicitly mention the Union, this conversa-
tion related to the advent of the Union in the Respondent's plants.
3 King admitted that he told employees that the Respondent had advised him "to oper-
ate as is" if he could , and if he could not, he "would have to put a lock on the gate "
We agree with the Trial Examiner that the phrase "operate as is" meant as an un-
organized plant. Unlike the Trial Examiner , however , we find it unnecessary to consider
whether King's remarks could be construed to mean that the plant would be closed in the
(-vent of a strike, since the record shows that when King made these remarks at the
March 28 meeting, there had not as yet been any reference to the possibility of a strike.
4 The complaint alleged that seven employees were discharged for discriminatory rea-
sons. However, on agreement of the parties , the Trial Examiner granted a motion by the
general Counsel to delete from the complaint the name of Ronald Marks as an alleged
discriminatee.
g The Respondent operates a number of plants in the eastern portion of the United
States. The instant case involves the Respondent 's operations in its Western Kentucky
Division, which embraces manufacturing , warehousing, and retailing operations at two
locations in the Madisonville , Kentucky , area, and manufacturing and distributing opera-
tions at a third location in Carrier Mills, Illinois.
AUSTIN POWDER COMPANY 185
this statement. Thereafter, between April 10 and May 8, the Respond-
ent discharged seven employees, thereby eliminating about one-third
of the employee complement at its Madisonville operations. On May
8, the Union again requested recognition and once again recognition
was refused.6
The Trial Examiner found that there was economic justification for
the Respondent's reducing its employee complement but that the Re-
spondent violated Section 8 (a) (3) by selecting the particular em-
ployees who were terminated for discharge because of their union
activity. We need not consider whether there was discriminatory
selection, because we are persuaded and find, unlike the Trial Ex-
aminer, that the Respondent was motivated by the advent of the Union
rather than by lawful economic considerations in its decision to reduce
the employee complement.
In reaching this conclusion, we rely on company knowledge of the
union activity herein, the timing of the reduction of the employee
complement, and the evidence of union animus. As to knowledge of
union activity, the record establishes, and we find, that at the time
of the discharges, the Respondent knew that the Union was seeking
to represent its Madisonville employees and that a majority of these
employees, including the discriminatees, had indicated their support
of the Union. Thus, on March 27, the Respondent received the
Union's demand for recognition as representative of its Madisonville
employees and on March 28 a majority of its employees walked out of
a meeting under circumstances indicating their support of the Union.
The Respondent also had specific knowledge that the six discrimina-
tees supported the Union. The six discriminatees had signed union
authorization cards during March, and Frederick, one of the discrimi-
natees, was the leader of the union movement; these six employees, led
by Frederick, were among those who walked out in protest against the
Respondent's threatening remarks at the March 28 meeting; and four
of these six employees had refused to sign Respondent's March 27
petition repudiating the Union?
With respect to the timing of the discharges, we note that the dis-
charges began soon after the Union's request for recognition. Thus,
the Respondent received the Union's request on March 27; on that
same day, the Respondent's supervisors began the above-described
campaign of threats and interrogation; and, between April 10 and
May 8, during which time the Union's representation petition was
pending, the six discriminatees were discharged. And as to union
animus, we take cognizance of the above-described unlawful interro-
6 On March 29, the Union petitioned the Board for a representation election among the
Respondent's employees, and, on May 15, a hearing on this petition was held, However,
the Union subsequently withdrew the petition in view of the pendency of the present
complaint proceeding.
7 The other two dhscriminatees did not testify about the Respondent's petition.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation and threats, and find that the Respondent has thereby clearly
manifested its hostility to union organization.8
The foregoing facts establish, in our opinion, a strong prima facie
case that the decision to reduce the employee complement and the
resulting discharges were discriminatory. The part of the Respond-
ent's defense, which the Trial Examiner accepted, is that there was
economic necessity for reducing the employee complement at that time.
Its justification is, in substance, that there has been a decline in its
Madisonville business because of increased competition and because
of reductions in the size of the territory the Madisonville operations
service . However, as already noted, we are unable to accept the Re-
spondent's contention that it was so motivated. In the first place,
the only specific evidence produced by the Respondent to prove that
it had suffered a loss of business at Madisonville consisted of certain
figures showing that production at the Madisonville plant during
the second quarter of 1962 declined approximately 25 percent as com-
pared with production in the first quarter in 1962.9 However, the
discharges in issue herein took place between April 10 and May 8,
at the beginning of the second quarter. Thus, in deciding to termi-
nate employees and specifically to effect these discharges, the Re-
spondent could not have relied on this economic data, comparing
business in the first and second quarters. Moreover, the Respond-
ent's Carrier Mills plant, also under District Manager King' s juris-
diction and part of the Respondent's Western Kentucky Division,
suffered a similar reduction in production (almost 20 percent) be-
tween the first and second quarters of 1962, and yet the Respondent
did not discharge any employees at this location. In addition, the
precipitate nature of its decision to terminate employees, occurring
immediately after the Union's demand for recognition, argues strongly
against any finding that such decision to terminate was motivated
by economic considerations. Thus, there is no indication in the
record that employees were ever told that a reduction in the employee
complement at Madisonville for economic reasons was being con-
templated. Also, while King testified generally that the Company's
main office had been conferring with him since "late spring or early
summer" of 1961 about the necessity of laying off employees due to
the reduction of the size of the area which he was servicing, he did
not refer to any specific conversations. Further, there is no evidence
of any conversation taking place between company officials regard-
ing an economic layoff just prior to the April and May discharges.
Indeed, King admitted that the employee complement was not re-
8 Cameo, Incorporated , 140 NLRB 361
9 Although the Respondent also testified that its sales decreased during late 1961, it
presented no specific data showing the amount of this decrease or comparing the sales at
the time of the discharges with those of any earlier period.
AUSTIN POWDER COMPANY 187
duced between March 1961 and March 1962, and the record establishes
that between May and November 1961, the Respondent hired a number
of employees.10 It is therefore clear, and we find, that the reduction
of the employee complement which took place during April and
May 1962 was not in implementation of conversations that took place
in the spring and summer of 1961 or early in 1962.
Accordingly, in view of the timing of the reduction of the employee
complement immediately after the Union's demand for recognition,
its precipitate nature, the Respondent's demonstrated union animus,
and the lack of relevant economic evidence to support Respondent's
defense of economic necessity, we find that the appearance of the
Union clearly was the factor that occasioned the decision to lay off
employees, and that the resulting discharges of these six employees,
during April and May, were in violation of Section 8 (a) (3) and (1)
of the Act."
3. We also agree with the T rial Examiner, and for the reasons set
forth in the Intermediate Report, that on March 30, and thereafter,
the Respondent unlawfully refused to recognize or bargain with the
Union, thereby violating Section 8(a) (5) and (1) of the Act.ia
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action in order to effectuate the policies of
the Act.
Having found that the Respondent discriminatorily discharged six
employees between April 10 and May 8, 1962, in violation of Sec-
tion 8(a) (3) and (1) of the Act, we shall order that the Respondent
offer to the hereafter named employees immediate and full reinstate-
ment 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 earnings they may have suffered as a result
of the discrimination against them, by payment to each of them of a
sum of money equal to the amount he would have earned from the date
of the discrimination to the date of the offer of reinstatement, less net
earnings during said periods to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Company,
10 The Respondent hired at least three employees during this period, one each on
May 10, October 9, and November 1, 1961 . The record does not show whether these
individuals were hired as replacements.
n DuBois Chemicals , Inc., 140 NLRB 103.
12 We agree with the Trial Examiner that Respondent ' s rejection of the Union's demand
for recognition was not motivated by a good-faith doubt as to the appropriateness of the
unit sought . Therefore, unlike the Trial Examiner, in finding that the Respondent vio-
lated Section 8 ( a) (5) and ( 1), we find it unnecessary to consider the applicability of the
Board's decision in Tom Thumb Stores, Inc ., 123 NLRB 833, to the facts in the instant
case.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
90 NLRB 289, and shall include the payment of interest at the rate
of 6 percent per annum, to be computed in the manner set forth in
Isis Plumbing cf Heating Co., 138 NLRB 716.13
Charles Frederick Douglas Scott
Henry Doniel Curtis Head
James Davis Darrell Francis
We expressly reserve the right to modify the backpay and rein-
statement provisions of our Order herein, if such action should be
required by facts not now in the record, or by specific circumstances
not now apparent.14
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and other unfair labor prac-
tices may be anticipated. We shall therefore order that the Respond-
ent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act."
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
(1) The following paragraph shall be substituted for paragraph
2(c) of the Recommended Order:
(c) Make whole the said employees, in the manner set forth
in the section of this Decision and Order entitled "The Remedy,"
for any loss of pay they may have suffered by reason of the Re-
spondent's discrimination against them.
(2) The following paragraph shall be inserted between the second
and third paragraphs of the notice:
WE WILL NOT discourage membership in Local Union No. 215,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization of
our employees, by discharging or laying off any employee or in
any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
"Member Leedom dissents from the inclusion of interest on the backpay obligation for
the reasons stated in the dissent in the Isis Plumbing case.
14 Coca-Cola Bottling Company of Louisville , Inc., 108 NLRB 490, footnote 23.
15 Greenwood Farms, Inc., 140 NLRB 649.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The charge herein was served upon Austin Powder Company, hereinafter called
the Respondent, on May 18, 1962,1 and the complaint issued on June 29. The hearing
was held before Trial Examiner Sidney Sherman on August 29 and 30 in Madison-
1 All events hereinafter related occurred in 1962 , unless otherwise stated.
AUSTIN POWDER COMPANY 189
Ville, Kentucky? The issues litigated were whether the Respondent violated Section
8(a)(3) and ( 1) of the Act by the discharge of six employees ; Section 8 (a)(5) and
(1) by refusing to bargain ; and Section 8(a)(1) by interrogation , solicitation of
employees to disavow the Union , and threats of reprisal for concerted activities. After
the hearing briefs were filed by the Respondent and the General Counsel.
Upon the entire record ,3 and from my observation of the witnesses , I adopt the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is engaged at Madisonville, Kentucky,
in the manufacture and sale of explosives and fertilizers and the distribution of mine
and mill supplies. It annually ships to points outside Kentucky products valued in
excess of $50,000, and its gross annual sales exceed $500,000.
It is found that the Respondent is engaged in commerce within the meaning of the
Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 215, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, hereinafter called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
In. THE UNFAIR LABOR PRACTICES
The complaint alleges, and the answer denies, that the Respondent violated: (1)
Section 8(a)(1) of the Act by various threats of reprisal for union activity, by
interrogation, and by soliciting employees to sign an antiunion petition; (2) Section
8(a) (3) and (1) of the Act by discharging, and refusing to reinstate, seven named
employees because of their union activity; and (3) Section 8(a)(5) and (1) of the
Act by refusing to recognize or bargain with the Union as the representative of
Respondent's employees.
A. Sequence of events
Respondent operates a number of plants in Florida, Tennessee, Illinois, Kentucky,
Indiana, and elsewhere. The instant case involves the so-called Western Kentucky
Division of Respondent's operation, which embraces (1) a plant in Carrier Mills,
Illinois, which manufactures and distributes explosives, (2) another such plant near
Madisonville, Kentucky, and about 75 miles from the Illinois plant, and (3) a com-
bined warehouse and retail store operation in Madisonville proper, which deals in
mine and mill supplies other than explosives. In March 1962, the Respondent had 21 4
production employees at the Madisonville plant and the warehouse-retail store in
Madisonville.
The Union's organizing efforts were confined to the two Madisonville operations.
Between March 17 and 26, Frederick, an employee at the plant,5 solicited the Madison-
ville employees to sign union authorization cards and obtained 12 signatures. An
2 The hearing was held open to receive certain stipulations from the parties. On
October 22, I was advised by the General Counsel that neither he nor the Charging Party
could agree to the accuracy of the contents of a document submitted to me by Respond-
ent after the adjournment of the hearing, purporting to show the number of hours worked
by Respondent's employees in 1961 and 1962 . Accordingly, on October 22, I issued an
order that the document be marked as "Respondent's Exhibit No. 17," and that It be
rejected and placed in the file of rejected exhibits.
On October 23, I received a stipulation signed by all parties regarding the hiring dates
of certain of Respondent's employees, and I issued an order admitting such stipulation in
evidence as Trial Examiner's Exhibit No. 1. On the same date I ordered the hearing
closed.
2 The transcript of testimony herein is hereby ordered corrected in the following respects:
(1) On p. 212, line 5, change "excluded" to "included."
(2) On p. 268, line 5, change "objection" to "concession."
This figure includes Roger Davis, whose supervisory status is considered below, and
three others as to whom the General Counsel took the position at the instant hearing that
they should be excluded as office clericals.
5 Hereinafter all references to "the plant" denote only the Madisonville plant , unless
otherwise stated.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional signature was secured by him on March 28. On March 26, the Union, by
letter, demanded recognition as the representative of employees of the Respondent at
its "Madisonville establishment."
This letter was received on March 27, by King, Respondent's district manager,
who was in charge of all the Madisonville operations. On the same day Respondent's
supervisors solicited the employees to sign a statement certifying that they were
not members of the Union and had not chosen it to represent them. Also, on the
same day, King telephoned employee Frye and sought to ascertain from her the
reasons for the employees' apparent discontent. The next day, March 28, King
held a meeting of the Madisonville employees in the plant, in which he made some
reference to the closing of the plant,6 and the meeting culminated in the mass de-
parture of 11 7 employees, led by Frederick.
On March 30, King by letter, rejected the Union's demand for recognition, profess-
ing doubt of its majority status and of the appropriateness of the claimed unit, and
suggesting resort to the Board to settle those questions, The next day the Respondent
posted a notice to the employees, apprising them of the Union's demand and the
Respondent's reply thereto, and purporting to repudiate any coercive action thereto-
fore taken by the Respondent. Between April 10 and May 8, the Respondent laid
off seven employees, allegedly for lack of work. Of these, six had signed union cards,
and one of these six was Frederick, the leader of the union movement.
In the meantime, on March 29, the Union had filed a petition with the Board
for an election among Respondent's Madisonville employees,8 and a hearing on the
petition was held on May 15. Subsequently, the petition was withdrawn by the
Union in view of the pendency of the instant charge, and no election has been
held.
B. Discussion
1. The 8(a)(1) violations
The King-Frye conversation
As related above, on March 27, King received the Union's demand letter. That
evening he called Frye, a production employee, and, according to Frye, referred to
"trouble at the plant," asked her if she knew who was "the head of the union move-
ment, how long it had been brewing," and to whom he could talk "to get it stopped."
Frye added that when she professed ignorance, King told her "As for your job, we
made your job for you, we don't need you tomorrow. We can buy the bags cheaper
than you can make them from Bemis Bag Company."
King's version was that he merely asked Frye if she knew of any employee
grievances, and that he pointed out to her that the Respondent had been good to its
employees, including Frye, having "made work" for her that ordinarily would
have been done elsewhere.
Frye was a union adherent but was still in Respondent's employ at the time of
the hearing. She did not impress me as the sort of person who would carry her
advocacy of the Union to the point of deliberately fabricating testimony against an
employer who had been as generous to her as had the Respondent. On the other
hand, it was to King's interest to disavow any statements that would implicate the
Respondent in any unfair labor practices. Moreover, as the discussion below reveals,
King's testimony as to other matters was not credible. Accordingly, I credit Frye,
and find that King interrogated her about the identity of the leader of the union
movement among the employees and, when she refused to volunteer any information,
reminded her, as King, in effect admitted, that her job was a superfluous one,
and that she was expendable.9
On March 27, Respondent's supervisors solicited the employees involved herein
to sign a statement reading:
I hereby certify that I am not a member of Local Union #215, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America,
and that I have not chosen said union as my bargaining representative.
6 The precise context of this reference is in dispute, and will be considered In detail
below
7 One other employee left with them, but returned to the meeting almost immediately.
8 Case No 9-RC-4925 (not published in NLRB volumes).
9 King's testimony implies that this reminder was given merely to illustrate his con-
tention that the Respondent had been generous to its employees Even so, it would be
proper to find, In view of the overall antiunion context of the rest of the conversation,
as found above, that such reminder was reasonably calculated to deter Frye from arousing
the Ire of management by aligning herself with the Union.
AUSTIN POWDER COMPANY 191
It is well settled that such solicitation of employees to repudiate a union is
coercive.lo
The next day, King called a meeting of the employees. Seventeen of the twenty-one
employees here involved attended. According to King, at the outset of the meeting,
Frederick declared that the employees were not interested in a meeting unless all were
present, and he asked those who agreed with him to stand up, whereupon the other
employees stood up. King then, as he testified, told the employees that the Re-
spondent had advised him "to operate as is," if he could, and if he could not he
"would have to put a lock on the gate." Kin.- described the reaction to this as
follows:
At that time why Frederick said, "That will be your first injunction." He said,
"There will be a Teamster representative at my home tonight at 7:00 o'clock.
Everybody with me follow me out the door."
It is not disputed that a total of 11 employees, including Frederick, walked out of
the meeting.11 There is considerable dispute, however, as to the precise content of the
remarks of King and Frederick on the foregoing occasion. According to Frederick,
who was substantially corroborated in this respect by a number of other witnesses,
King's threat to close the plant was expressly related to the employees' union activity,
and the walkout was preceded by an appeal by Frederick that all who were "for the
Union" follow him.
I do not deem it necessary to resolve the foregoing conflict, as, even if one credits
King, it is clear that his threat to close the plant if he could not "operate as is"
would reasonably be construed by the employees as meaning that the plant would
be closed if the Respondent could not continue to operate it as an unorganized plant.
While King explained at the hearing that he in fact meant only that the plant would
be closed in the event of a strike, I would still find the statement coercive, even if
it were so construed by the employees, since, absent any indication by King as to
when, if ever, the plant would reopen, such a statement would constitute a threat of
reprisal for concerted activities.12
On March 31, King posted a notice on one or more of the Respondent's bulletin
boards. After informing the employees of the Union's bargaining demand and the
Respondent's rejection thereof because of doubt as to the Union's majority status
and the appropriateness of the unit sought, the notice stated:
The Company wishes to inform you at this time that each and every employee
has a right:
1. To join a union, or
2. Not to join a union
The choice is entirely up to each and every employee. This Company will
not interfere or coerce or intimidate any employee in the exercise of the above
rights.
There seems to be some misunderstanding as to whether or not the Company
has interfered with these rights. We do not think we have interfered; however,
so that there will be no misunderstanding, we again assure you that any action or
statement by the Company which would lead you to believe that you do not
have the right to join or to refrain from joining a union is hereby withdrawn and
cancelled.
Again we repeat, each and every employee has a right to join or refrain from
joining a union, and if any agent, supervisor or executive of this Company should
tell you that you cannot exercise such rights, please contact the writer im-
mediately.
This notice remained posted until August 28.
Respondent contends that even if it be chargeable with coercion before March 31,
such coercion was neutralized by the foregoing notice. The Board has held that a
respondent employer may relieve himself of liability for coercive conduct by effec-
tively repudiating such conduct. However, in order to be effective the repudiation
10 Murray Envelope Corporation of Mississippi, 130 NLRB 1574, 1577; Satiila Rural
Electric Membership Corporation, 129 NLRB 1084.
"Another (Coursey) walked out but promptly returned, having misunderstood the rea-
son for the walkout
12 While King testified that he told those employees remaining in the meeting after the
mass exodus that the plant would operate the next day unless there was strike violence,
he admittedly did not so inform those who had walked out with Frederick.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be timely, unambiguous , adequately publicized, and there must be no proscribed
conduct after the publication of such repudiation.13
There would seem to be no question that the notice posted on March 31 was timely
with respect to the coercive acts found above, which occurred on March 27 and 28.
However, it seems debatable whether the notice was sufficiently unambiguous, inas-
much as (1) it made no reference to specific acts or statements,14 and (2) merely
retracted any act or statement reflecting upon the "right" of the employees to join
a union . There is no issue here of the Respondent or its supervisors having led the
employees to believe that they had no right (in the legal sense) to join a union.
The only finding heretofore made is that the Respondent engaged in conduct which
was calculated to deter employees from exercising that right. It may be that this
distinction is a fine one, and that realistically speaking employees would in fact regard
the Respondent's retraction as a repudiation, however inept, of the coercion inherent
in the events of March 27 and 28. Even so, the question remains whether the notice
was adequately publicized. The only evidence on that point is King's testimony that
the notice appeared at "the various locations . . . in the plant." However, it does
not affirmatively appear that the notice was also posted at the warehouse-store, which
is 6 miles distant from the complex of buildings generally referred to in the record
as the "plant."
Finally, as already noted, the Board has held that any repudiation of prior mis-
conduct is vitiated by subsequent illegal acts. As I conclude below that the Respond-
ent engaged in violations of the Act after the posting of the foregoing notice, I find that,
for this reason alone if for no other, the notice of March 31 did not adequately
dissipate the effects of the coercive conduct of March 27 and 28. By its subsequent
violations found below, the Respondent "nullified [its] neutrality declarations and
made it obvious that the notice was intended only as lip serve to the Act." 15
Accordingly, I find that the Respondent violated Section 8 (a) (1) of the Act by (1)
King's interrogation of Frye, and his veiled threat of reprisal on the same occasion,
(2) the admitted solicitation of employees to sign a statement disavowing adherence
to the Union,16 and (3) King's threat at the meeting of March 28 to close the plant
in reprisal for the employees' concerted activities.
2. The 8 (a) (3) issue
Between April 10 and May 8, Respondent notified seven employees that they were
being "permanently laid off." None of them has since been called back to work. Of
these seven, all but one (Ronald Marks) has signed union cards, and one of them,
Frederick, was the leader of the union movement. These six, hereinafter called
the "claimants," are alleged to have been discharged because of their adherence to
the Union 17 The 6 were among the 11 employees who walked out of the meeting
of March 28. According to King's own version of the incident, related above, this
walkout was precipitated by an appeal by Frederick, after announcing that he was
to meet a union representative that evening, that all who were "with" him leave the
meeting. According to the General Counsel's witnesses, Frederick's appeal was even
more explicit-namely, that all who were for the Union follow him. Even if King's
13 See Livingston Shirt Corporation, et at ., 107 NLRB 400, 403; Saiant & Salant, Incor-
porated, 92 NLRB 417, 440-146, and cases there cited
14 Compare the specific language of the repudiations in the Livingston Shirt case, supra;
Whyte Manufacturing Company, Inc ., 109 NLRB 1125, 1128-1130; Fleetwood Trailer Co.,
Inc., 118 NLRB 1355, 1356.
1b Salant & Saiant, Incorporated, 92 NLRB 417, 446.
10 The General Counsel cites as coercive certain statements made by Respondent's super-
visors on March 27, in connection with the circulation of the antiunion "petition " How-
.eyer, in view of the ambiguity of these statements, and as any violation finding based
thereon would be merely cumulative and would not in any event affect the remedy, I make
no findings with respect thereto.
I find no merit in Respondent 's contention that the circulation of the "petition" on
March 27 was privileged under Blue Flash Express, Inc., 109 NLRB 591, where the Board
held that an employer might, subject to certain safeguards, question his employees about
their union sentiments in order to verify a Union's claim of majority status. Here, the
Respondent did not content itself with merely asking the employees whether they wanted
the Union, but Instead requested them to sign a statement that they In fact did not want
the Union. Moreover, such conduct, unlike the situation in Blue Flash , occurred in the
context of other coercive acts, as found above For these reasons, alone, apart from any
other consideration, I do not deem the Blue Flash rule to exonerate the Respondent.
17 The complaint alleged that Ronald Marks was also discharged for discriminatory
reasons. However , during the hearing the General Counsel withdrew this allegation.
AUSTIN POWDER COMPANY 193
version of the foregoing incident be credited, there can be no doubt that the circum-
stances attending the walkout were such as to put him on notice that those who partic-
ipated therein, including the six claimants, were union adherents.18 Moreover, three
of the six (Scott, Frederick, and Davis) testified without contradiction, and I find,
that when they were solicited by Respondent's supervisors on March 27 to sign the
antiunion statement, they refused, asserting that they had already signed a union
card. A fourth, Doniel, refused to sign the statement, and would not answer the
supervisor's query as to whether he had signed a union card. Indeed, the Respond-
ent does not contend that it was unaware of the union activity of any of the claimants.
Its sole defense is that the discharges were for economic reasons and that the six were
selected on the basis of seniority.
In support of the Respondent's economic justification, the following uncontroverted
evidence was adduced:
1. No employees have been hired to replace any of the seven discharged between
April 10 and May 8, nor has there been any replacement for a truckdriver who left
voluntarily after May 8.
2. As between the first and second quarter of 1962, production at the Madisonville
plant declined about 25 percent.
3. King testified, without contradiction, and I find, that since May 8, there had
been no significant increase in the number of hours worked per week by the Re-
spondent's employees at Madisonville or at Carrier Mills.
Some effort was made at the hearing to show that the Respondent diverted produc-
tion from its Madisonville plant to other plants, in order to create an economic justi-
fication for the instant discharges. However, no substantial evidence to this effect
was forthcoming, and the evidence, in fact, preponderates in favor of a finding that
there was no such diversion. Moreover, this contention is not raised in General
Counsel's brief and presumably has been abandoned.
I find, therefore, that there was economic justification for the reduction in force
that occurred between April 10 and May 8, and that it has not been shown by the
preponderance of the evidence that such reduction was due to any other cause. The
question remains whether the six claimants was selected for discharge or layoff
on the basis of seniority, as Respondent claims, or because of their union activity,
as the General Counsel contends. The following factors tend to support the Gen-
eral Counsel's position:
(1) As to Frederick, King gave no weight to his nearly 3 years of service in another
plant (at Evansville, Indiana), before transferring to Madisonville.19 King explained
this on the ground that he preferred to follow a policy of plantwide, rather than com-
panywide, seniority.20 However, King admittedly did not even follow plantwide
seniority as to Frederick, since two (nonunion) employees (Schmetzer and Offutt)
were retained, although they had less plantwide seniority than Frederick. King
failed to explain this deviation from plantwide seniority.21
(2) In addition to Frederick, three other claimants (Scott, Doniel, and James
Davis) had more seniority than Schmetzer or Offutt.
(3) Although the ratio of union to nonunion employees in the unit sought was
less than 2 to 1,22 the ratio of union to nonunion among those terminated in April and
181 find inherently incredible King's rather confused denial that he viewed the exodus
from the meeting as a prounion demonstration.
19 Respondent concedes that had Frederick been credited with his service at Evansville,
he would have been entitled to be retained in the April-May reduction in force Frederick
was hired at Evansville in August 1956. If his seniority be computed from that date, it
is evident that he had more seniority than all but 2 of the 21 employees here involved.
See Trial Examiner's Exhibit No. 1.
20 It is evident from King's testimony that his rejection of companywide seniority was
not dictated by any preexisting policy of Respondent or King He admitted that to his
knowledge the question of companywide versus plantwide seniority in layoff arose for the
first time in Frederick's case. Indeed, the record indicates that no policy in plantwide
seniority was in effect in 1959 or 1960 under King's predecessor at Madisonville, as
Frederick himself survived a general layoff which was initiated late in 1959, only a few
months after he transferred to Madisonville.
21 In its brief, Respondent contends that these two employees, who, I find below (in
accord with Respondent's contention) were plant clerks, were retained out of seniority
because none of the senior laid-off employees was qualified to do their work. However, no
testimony that this was the reason for so departing from seniority was offered at the
Bearing.
22 I e., 13 union adherents out of a unit which by the Respondent 's own count con-
sisted of 21 employees. Even If Roger Davis is excluded, in view of my finding below
that he iS a super) i>or, that would not change the ratio indicated in the text above
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May was 6 to 1. Moreover, the number of union adherents discharged coincided ex-
actly with the number of such adherents that, on the basis of the Respondent's count of
the number in the proposed unit, would have to be eliminated to destroy the Union's
majority in such unit. Thus, by Respondent's reckoning, there were 21 in that unit
(including Davis, Kimble, Offutt, and Schmetzer), and the discharge of 7 employees
in April and May left 14 in the unit, of whom only 7 23 were union adherents, 1 short
of a majority.
(4) In notifying the claimants of their termination, Respondent told them that
they were being "permanently laid off." If the action was due only to economic
conditions, which are normally subject to change, one may well inquire why such
action was characterized as permanent. If King is to be credited, this characterization
was inspired solely by his view that he foresaw no likelihood of any favorable change
in the economic factors which necessitated the reduction in force,24 and his belief
that the terminated employees would therefore be better advised to look for work
elsewhere rather than wait for recall. Be that as it may, the Respondent's notifica-
tion of a permanent layoff is at least equally consistent with an intention not to rehire
any of the claimants even if jobs became available because of an improvement in
business or because of normal turnover, and to that extent tends to reinforce the
inference arising from the other circumstances cited herein that Respondent selected
the claimants for termination because of their union activities.
(5) As already stated, there is no denial by Respondent that it was aware of
the union affiliation of any of the claimants, and, as shown above, the record would
not in any event support such a denial. On the other hand, neither of the two junior
employees retained (Offutt and Schmetzer) had signed a union card or, so far
as appears from the record, manifested any sentiment.
Upon consideration of all the foregoing circumstances, including the flexibility
of Respondent's concept of seniority, the disproportionate number of union adherents
terminated, the Respondent's knowledge of the claimants' prounion sympathies, King's
campaign to secure a mass repudiation of the Union, his admitted threat to shut down
the plant to combat the employees' concerted activities, and his other coercive conduct
found above, : find that the controlling consideration in selecting the claimants for
termination was their union activities, and that by such discriminatory action the
Respondent violated Section 8(a) (3) and (1) of the Act.
3. The refusal to bargain
a. Chronology
On March 26, Arden, a union representative, sent Respondent a letter stating that
the Union had been designated as their collective-bargaining agent by a majority of
Respondent's employees in the following unit:
All truckdrivers, all production and maintenance employees, and all other em-
ployees at [the Respondent's] Madisonville, Kentucky, establishment: excluding
all guards, professional employees, office clerical employees, and all supervisors
as defined in the Act.
That letter proposed a meeting to commence negotiations, and offered to prove
at such a meeting the Union's majority status "by any means which may be mutually
agreeable." The letter was received by King on March 27.
On March 29, the Union filed with the Board's Regional Office a petition for a
representation election among the Respondent's employees in the foregoing unit.
On March 30, King wrote the Union, expressing doubt as to its majority status and
as to the appropriateness of the unit defined in the Union's letter, and proposing that
the foregoing questions be resolved by the Board 25
On April 17 the Respondent furnished the Board with a list of employees "falling
within the alleged appropriate unit." This list contains 19 names, including Roger
Davis, Offutt, Kimble, and Schmetzer but does not include Ronald Marks or Francis,
who had both been terminated on April 10. At the hearing before me, It was
stipulated that on March 26, when the Union made its demand, there was a maximum
23 I e , the 13 card signers less the 6 claimants.
21 These factors, according to King, were a substantial reduction in the size of the sales
territory allotted by the Respondent to King's division and the establishment by com-
petitors of two plants in his area.
23 Presumably, this letter was written before the Respondent received a copy of the
Union's petition of March 29; for, the letter states, "We presume you have filed a peti-
tion" with the Board.
AUSTIN POWDER COMPANY 195
of 21 employees in the unit sought, which number consisted of the 19 on the fore-
going list, plus Ronald Marks and Francis . Fifteen of these twenty-one were
employed at the plant premises just outside Madisonville , and the remaining six at
the warehouse -store operation in Madisonville proper.
On May 8, Arden spoke to Respondent 's counsel, Donovan , and requested
recognition . Donovan refused , but offered to send Arden a copy of the list of
19 employees mentioned above 26 Arden in this conversation offered to prove the
Union's majority status by the signed authorization cards. Donovan answered
merely that "he wasn 't going to get into that one." 27
Efforts to negotiate a consent-election agreement were futile , and on May 15 a
hearing was held on the Union 's petition , the only issues litigated being whether the
"laid off" employees were eligible to vote and whether to include in the unit
Roger Davis, Offutt , Kimble, and Schmetzer . The Respondent wished to include all
four, while the Union sought to exclude Davis a supervisor , and the rest as office
clerks. At that hearing , King expressly disclaimed any contention that the Madison-
ville plant and the warehouse -store constituted two separate , appropriate units, and
no question was in fact raised as to the appropriateness of a single unit embracing
( and limited to) both Madisonville operations.
b. The appropriate unit
While it was not clear from the Union's March 26 letter that it was claiming both
of Respondent's operations in the Madisonville area, King testified that he assumed
that to be the case 28 and neither in the subsequent representation proceeding, nor
at the hearing before me, did the Respondent contend that the Union's March 26
demand was defectively ambiguous 29 Accordingly, 1 find that at all material times
such demand was understood by Respondent to embrace both the Madisonville
operations; and that is the unit which the General Counsel contended before me was
appropriate. Although it did not question the appropriateness of such a unit in
the representation case, the Respondent now contends that such a unit is not appro-
priate, and asserts in its brief that a single unit comprising the two Madiscnv1lle
operations and the Carrier Mills plant is alone appropriate.
As already related, King is in charge of Respondent's Western Kentucky Division,
which comprises the Carrier Mills plant and the two Madisonville operations. an
Madisonville proper the Respondent operates within the same buildings a retail
store, which sells mine and mill supplies, and a warehouse which serves the store.
The Respondent's main office for its Western Kentucky Division is also housed in
that building. The employees at this warehouse are supervised by a "warehouse
manager." Six miles from the foregoing establishment there are seven or eight
buildings, in close proximity to each other, which house the Respondent's manu-
facturing and related operations, except for one building which serves as an auxiliary
warehouse for the retail store. The employees in these buildings are under the
separate immediate supervision of a plant manager, except that any employee in the
auxiliary warehouse would come under the supervision of the warehouse manager,
mentioned above. The plant at Carrier Mills produces the same items as the
Madisonville plant, and has separate, immediate supervision.
21 Donovan in fact sent Arden such a list the next day.
21 The foregoing findings are based on Arden's uncontradicted testimony.
28 Transcript pp. 321-322.
ere Such contention was raised for the first time in Respondent's brief filed with me after
the instant hearing. Reference is made therein to testimony by Arden that he was not
"familiar with" Respondent's warehouse operation in Madisonville. However, at the
same time he testified that he meant to include in his March 25 demand all the Respond-
ent's Madisonville employees and not just those at the plant I accordingly do not con-
strue his admission that he was not familiar with the warehouse-store operation as mean-
ing that he intended to exclude it from his demand. I take his testimony to mean rather
that he intended to include the plant employees and any other employees Respondent
might have in the Madisonville area.
it is clear, in any event, that by the time of the hearing in the representation case on
May 15, both parties understood that the warehouse-store operation was sought by the
Union, as one of the issues litigated at that time was the inclusion in the unit of Offutt
and Kimble, who worked in the warehouse-store. Accordingly, any preexisting defect in
the Union's demand would necessarily have been cured by the position taken by it at the
representation hearing, and there would therefore have been, at least on that date if not
before, a request for recognition in a unit embracing both Madisonville operations.
708-006-64-vol. 141-14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As already noted, in March, of the maximum of 21 employees in the unit sought
by the Union, 15 were employed at the Madisonville plant and 6 in the warehouse-
store operation. There were, in addition, six employees at Carrier Mills.
In support of its position that a Madisonville-Carrier Mills unit is alone appro-
priate, the Respondent points mainly to (1) the centralized control by King of labor
relations in all three operations, (2) the maintenance at Madisonville of a common
office for all three operations, and (3) the fact that both plants cooperate in servicing
each other's accounts when it is expedient to do so.
While these factors militate in favor of the larger unit , there are also considera-
tions supporting the smaller unit proposed by the General Counsel. The Carrier Mills
plant is about 75 miles from the two Madisonville operations, whereas those opera-
tions are only within 6 miles of each other, and the auxiliary warehouse for the retail
store is located in the immediate vicinity of the production buildings. Any em-
ployees stationed at that warehouse are subject to the supervision of the warehouse
manager. The record indicates further that the same truckdrivers service both
locations,30 and Hibbs testified that he has alternated between both locations.
It is clear from the foregoing that there is even more integration between the two
Madisonville operations than exists between those operations and Carrier Mills.
Moreover, as the Carrier Mills plant is under the separate, immediate supervision of
its own plant manager, as there is no relevant bargaining history, and as no labor
organization is seeking the broader unit proposed by the Respondent, it would seem
to be in accord with Board policy to find that a unit limited to the two Madisonville
operations is appropriate?'
I find, therefore that the following unit is appropriate for purposes of collective
bargaining:
All production, maintenance, and warehouse employees at the Respondent's
operations in the Madisonville, Kentucky, area, including truckdrivers and
plant clerks, but excluding office clerks, professional employees, guards, and
supervisors, as defined in the Act.
I find also, for reasons already stated, that such unit is in substance the one proposed
by the Union in its March 26 letter, and alleged by the General Counsel in the
instant complaint.
c. The Union's majority status
As already related, the Union made its initial bargaining demand on March 26.
On that date the Respondent had 17 employees whom the parties have at all times
agreed to include in the unit. In addition there were three employees, Schmetzer,
Offutt, and Kimble, whose inclusion was favored by the Respondent but opposed by
the Union (in the representation case) and by the General Counsel (at the hearing
before me), on the ground that they were office clerks. However, in his posthearing
brief filed with me, the General Counsel indicates that he has abandoned this
position. In any event, it appears from an examination of the record in the repre-
sentation case that these three individuals, while principally engaged in maintaining
records of inventory, production, and sales, had sufficient contacts with other em-
ployees in the unit to warrant their inclusion therein as plant clerks. I so find.
There remains only the dispute over Roger Davis, whom the General Counsel
would exclude as a supervisor. Davis works in the production operation under
the plant manager, Hatley, an admitted supervisor, and directs and assigns work to
production employees.32 While King insisted that Davis did not exercise his own
discretion in that regard but merely transmitted instructions received by him from
Hatley, it is not disputed that Davis substitutes for Hatley during the latter's vaca-
tions, that he may grant requests for time off when Hatley is not available. and that
he solicits employees to work overtime. King conceded moreover, that Davis had
authority to recommend hiring and firing, but he was not clear as to the weight
accorded to such recommendations. At one point he testified that a recommendation
of discharge by Davis would not be adopted without an independent investigation, but
later, when asked whether Davis could effectively recommend hiring or discharge,
King answered in the negative as to hiring but in the affirmative as to discharge.
30 Transcript pp. 141-142.
31 See Tyree's, Inc., 129 NLRB 1500, 1501-1502, and cases cited in footnote 2 of that
decision.
As Respondent does not now contend that each of the Madisonville operations should
be a separate unit, there is no need to consider whether there are differences between the
working conditions and job content at those operations which preclude combining them in
a single unit.
32 Davis was paid 25 cents more per hour than the employees under his direction.
AUSTIN POWDER COMPANY 197
Finally, Francis testified without specific contradiction, and I find, that when he ap-
plied to Hatley for work, the latter referred him to Davis, stating that "it was all right
if it was all right with Davis." Davis then questioned Francis about his qualifications,
and a week later he was hired.
In consideration of all the foregoing, particularly the evidence as to Davis' power
effectively to recommend hire and discharge, I find that he is a supervisor and may
not be included in the unit.
Having excluded Davis, I find that there were 20 employees in the appropriate
unit on March 26, of whom 12 had signed cards for the Union, giving it a majority 33
However, the Respondent contends that one of these cards (Welborn's) should not
be counted because of certain evidence that he was induced to sign it by representa-
tions that it was a necessary step to obtaining a representation election. Assuming,
without deciding, that Welborn's card should be rejected on that account, the Union's
majority status would not be affected thereby.34
In find therefore that on and after March 26, the Union represented a majority
of the employees in the appropriate unit.
d. The "Good Faith Doubt" defense
In his letter of March 30, rejecting the Union's demand for recognition, and
at the hearing before me, King professed to doubt the appropriateness of the unit
sought and the Union's majority status.
The General Counsel contends that King could not have had any good-faith doubt
as to the unit, pointing to the fact that at the representation hearing the Respondent
did not contest the appropriateness of the unit sought. In fact, the record of that
hearing shows that King expressly disclaimed any contention that the physical sep-
aration of the two Madisonville operations had any bearing on the appropriateness
of the unit 35 Nevertheless, at the hearing before me King asserted that on March 30,
he doubted the appropriateness of the unit sought because of "the question .
whether the unit in Madisonville, the office and the plant should be combined or
whether it should be separately [sic] or whether Carrier Mills should be entered
into that unit." And, Respondent's counsel asserted at the hearing before me that
it was Respondent's position in March, and still was, that two separate units in
Madisonville were alone appropriate.
However, in its brief, Respondent abandoned any contention that there should be
two separate units in Madisonville and for the first time unequivocally took the
position that the only appropriate unit was one embracing both the Madisonville
operations and the Carrier Mills plant.
In view of the foregoing shifting and sharply divergent unit contentions, which
reflect seriously on Respondent's good faith, and in view of Respondent's coercive
conduct described above, which followed on the heels of the Union's demand of
March 26, I am convinced that Respondent's questioning of the appropriateness of
the unit sought was not motivated by a good-faith doubt but rather by a rejection
of the principle of collective bargaining, and by a desire to gain time in which to
undermine the Union 36
As to King's doubt of the Union's majority status, he explained at the hearing
before me that he had such doubt because he had no way of knowing whether the
Union's claim was true.37 However, King was aware that Frederick and 10 other
employees (not counting Coursey) had walked out of the meeting of March 28,
33 In addition, a 13th card was signed on March 28, thereby augmenting the Union's
majority as of March 30, when Respondent refused to recognize It
34 The Respondent also cites testimony by Coursey of representations made to him that
if he did not sign a card it would later cost him $50 However, Coursey did not sign a
card, and there is no evidence that similar statements were made to any of those who did
sign cards.
35 General Counsel's Exhibit No. 3, p 16. Respondent's counsel contended at the hear-
ing before me that the failure to contest the unit in the RC case was due to a desire to
facilitate a consent election. However, the hearing in that case was held only after
negotiations for a consent election had proved futile.
30 Columbine Beverage Company, 138 NLRB 1297. Moreover, the Board has held that
even a good-faith doubt as to the appropriateness of the unit sought does not excuse an
employer's refusal to recognize a union, if , as I have found here, the unit sought was In
fact appropriate. Tom Thumb Stores, Inc . 123 NLRB 833.
37 It is noteworthy in this connection that King and his counsel failed or refused to
accept the Union's offer to prove its majority status by means short of a Board election.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after ( according to King's own version of the incident ) Frederick , announcing that
he was going to meet the union representative , appealed to all who were "with" him
to follow him. One would have to be obtuse indeed not to regard this walkout as
a demonstration of prounion sentiment , and I find that King , notwithstanding his
testimony to the contrary , so regarded it.
In any event, here, as in the case of King's alleged doubt as to the appropriateness
of the unit , and for the same reasons, I find that whatever reason King may have
had to doubt the Union's majority status, his refusal to recognize the Union was
not in fact motivated by any such doubt but rather by a rejection of the principle
of collective bargaining and that King's true purpose, as shown by his conduct, was
to gain time to dissipate the Union 's strength by the interrogation and threats of
reprisal found above, and by the discriminatory discharge of six union adherents,
including the leader of the union movement.
Accordingly , I find that on March 30 and thereafter the Respondent unlawfully
refused to recognize or bargain with the Union , thereby violating Section 8(a)(5)
and (1 ) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section 111, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a) (1), (3 ), and (5)
of the Act, it will be recommended that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain with the Union, which
represented a majority of the employees in an appropriate unit. Accordingly, I shall
recommend that the Respondent be ordered to bargain, upon request, with the Union
as the exclusive representative of the employees in the appropriate unit.
It has been found that the Respondent curtailed its operations for legitimate
business reasons; but that, in selecting employees for discharge , it unlawfully
discriminated against Lames Davis, Frederick, Scott, Head, Francis, and Doniel.
It is possible that some of these employees might have been selected for discharge
even absent any unfair labor practices , but the record furnishes no basis for determin-
ing which of them would have been so selected . Under these circumstances, it will
be recommended that the Respondent be ordered to offer the foregoing six employees
immediate reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges , dismissing , if necessary,
any employees hired since May 8. If there is not then sufficient work available for
the remaining employees and the six claimants , all available positions shall be
distributed among them in accordance with such nondiscriminatory practice as Re-
spondent had followed prior to April and May 1962, in effecting reductions in force
for economic reasons. The Respondent shall place those employees, if any, for
whom no employment is available after such distribution on a preferential hiring list,
priority on such list being determined in accordance with such preexisting non-
discriminatory practice . 38 The Respondent should also be directed to reimburse
Frederick, Scott, Doniel, Francis, Head, and James Davis for any loss of pay they
may have suffered by reason of the Respondent 's discrimination against them, by
paying to them a sum of money equal to the amount they would normally have
earned as wages from the date of their discharge to the date of Respondent 's offer of
reinstatement , less their net earnings during that period . Backpay shall be computed
on the basis of calendar quarters , in accordance with the method prescribed in
F. W. Woolworth Company, 90 NLRB 289, and interest at the rate of 6 percent
per annum shall be added to net backpay, in accordance with Isis Plumbing & Heat-
ing Co., 138 NLRB 716.
As it is possible , however, that one or more of these employees might have been
discharged in the reduction in force, even if Respondent 's selection had been made
on a nondiscriminatory basis, this possibility is to be taken into consideration in deter-
mining the amount of backpay due these employees.39
38 See Cleaver-Brooks Mfg. Corp ., 120 NLRB 1135, 1137.
39 Ibid.
AtJSTIN POWDER COMPANY 199
In view of the nature of the violations found herein , particularly the discriminatory
discharges , a potential threat of future violations exists which warrants a broad
cease-and-desist provision.
CONCLUSIONS OF LAW
1. All production, maintenance , and warehouse employees at Respondent 's opera-
tions in the Madisonville , Kentucky, area, including truckdrivers and plant clerks,
but excluding office clericals , professional employees , guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act.
2. At all times material the Union has been and still is the exclusive representative
of all the employees in the aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
3. By refusing to bargain collectively with the aforesaid labor organization as the
exclusive representative of its employees in an appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
4. By interrogation , solicitation of the employees to repudiate the Union, and
threats of reprisal for concerted activities , the Respondent has interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act, and has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. By discharging Frederick, Scott , Doniel , Francis, Head , and James Davis for
union activity, the Respondent has violated Section 8(a)(3) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case , and upon the foregoing findings of fact and
conclusions of law, it is recommended that Respondent , Austin Powder Company,
Madisonville , Kentucky , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain concerning rates of pay, wages , hours of employment, or
other conditions of employment with Local Union No. 215 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, as the
exclusive representative of all its production , maintenance , and warehouse employees
at its operations in the Madisonville , Kentucky, area, including truckdrivers and
plant clerks , but excluding office clericals , professional employees , guards, and super-
visors as defined in the Act.
(b) Discouraging membership in Local Union No. 215 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, or in
any other labor organization , by discriminating against employees in regard to their
hire or tenure employment or any term or condition of employment.
(c) Threatening employees that it will visit reprisals upon them if they engage
in concerted activities.
(d) Coercively interrogating employees concerning their union activities and
concerning the identity of the leader of such activities.
(e) Soliciting employees to repudiate the above -named Union or any other labor
organization.
(f) 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 the above-named
Union , 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 , except to the extent that such right is affected by the provisos
in Section 8(a) (3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act
(a) Upon request, bargain collectively with Local Union No. 215, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, as
the exclusive representative of all production , maintenance , and warehouse em-
ployees at Respondent 's operations in the Madisonville , Kentucky , area, including
truckdrivers and plant clerks, but excluding office clericals , professional employees,
guards, and supervisors as defined in the Act , with respect to rates of pay, wages,
hours of employment , or other conditions of employment , and, if an understanding
is reached , embody such understanding in a signed written agreement.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer to Charles Frederick, Henry Doniel, James Davis, Douglas Scott, Curtis
Head, and Darrell Francis immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other rights
and privileges.
(c) Make whole the said employees, in the manner set forth in the section of the
Intermediate Report entitled "The Remedy," for any loss of pay they may have
suffered by reason of the Respondent's discrimination against them.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amounts of backpay due under the terms of this Order.
(e) Post at its operation in the Madisonville, Kentucky, area, copies of the
attached notice marked "Appendix." 40 Copies of said notice, to be furnished by
the Regional Director for the Ninth Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of at least 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Ninth Region, in writing, within 20 days
from the date of receipt of this Intermediate Report, what steps the Respondent has
taken to comply herewith.41
"If this Recommended Order be adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a
Decision and Order."
41 If this Recommended Order is 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 the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain, upon request, with Local Union No. 215, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of all employees in the bargaining unit described
below in respect to rates of pay, wages, hours of employment, or other condi-
tions of employment, and, if an understanding is reached, embody it in a signed
agreement. The bargaining unit is:
All our production, maintenance, and warehouse employees at our opera-
tions in the Madisonville, Kentucky, area, including truckdrivers and plant
clerks, but excluding office clericals, professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT threaten our employees with reprsisals for concerted activities,
or coercively interrogate our employees about their union activities or those of
other employees, or solicit our employees to repudiate any labor organization
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization. to form, join, or
assist Local Union No. 215, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, 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,
except to the extent that such right may be affected by the provisos in Sec-
tion 8 (a) (3) of the Act.
WE WILL offer Charles Frederick, Henry Doniel, James Davis. Douglas
Scott, Curtis Head, and Darrell Francis immediate and full reinstatement to
GONIC MFG. CO., DIV. OF HAMPSHIRE WOOLEN CO. 201
their former or substantially equivalent positions , and make them whole for
any loss of pay suffered by reason of the discrimination against them.
All our employees are free to become , remain , or refrain from becoming or
remaining members of Local Union No. 215, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America , or any other labor
organization.
AUSTIN POWDER COMPANY,
Employer.
Dated--- ---------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees 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 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, Transit
Building, Fourth and Vine Streets , Cincinnati 2, Ohio, Telephone No. Dunbar
1-1420, if they have any question concerning this notice or compliance with its
provisions.
Gonic Manufacturing Company , Division of Hampshire Woolen
Company and Textile Workers Union of America , AFL-CIO.
Case No. 1-CA-378.. March 7, 1963
DECISION AND ORDER
On October 22, 1962, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate Re-
port. He further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief, and the Respondent filed a reply brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations 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
'After expiration of the period for filing exceptions and briefs , the Respondent, who
had filed no exceptions or brief, requested leave to file a brief in reply to the General
Counsel's brief, and was granted special leave to do so. We are aware that the Respond-
ent there made a reference to exceptions by it to the Trial Examiner's findings of viola-
tion of Section 8(a) (1). However, we find , in the circumstances , that as no such excep-
tions have, in fact, been filed in proper form or in timely fashion , there are no exceptions
to the 8 ( a)-(1) findings before us. See Rules and Regulations of the National Labor
Relations Board , Series 8, as amended, Section 102.46(b).
141 NLRB No. 18.