Boren Clay Products Co.

National Labor Relations Board - Board Decisions

Feb 28, 1969

174 N.L.R.B. 895 (N.L.R.B. 1969)

BOREN CLAY PRODUCTS
Boren Clay Products Company and United Brick and
Clay Workers of America , AFL-CIO. Case
I 1-CA-3603
February 28, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 25, 1968, Trial Examiner John F.
Funke issued his Decision 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 Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed with respect to such
allegations. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
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
entire record in the case, including the Trial
Examiner's Decision, the exceptions and brief, and
for the reasons set forth below hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner
The Respondent contends that on and after April
16, 1968, it had a bona fide doubt that the Union
continued to represent a majority of its production
and maintenance employees, and it was therefore
obligated under the provisions of the National
Labor Relations Act to discontinue bargaining until
the Union's majority status had been determined in
a Board -conducted election. In support of its alleged
good-faith doubt of the Union's loss of majority, the
Respondent relies on the strike of the employees
which lasted from March to September 1967, the
defeat of the Teamsters as the bargaining
representative for its truckdrivers and mechanics as
the result of a petition filed by the Respondent
following termination of the strike," and the
On November 7, 1968 , following issuance of the Trial Examiner's
Decision , the General Counsel and the Respondent filed a joint motion to
correct in certain respects the Trial Examiner ' s Decision and the official
transcript On November 22, 1968 , the Executive Secretary of the Board
issued an order correcting the transcript in accordance with the motion of
the parties , and we hereby grant the remainder of the motion and have
corrected the Trial Examiner ' s Decision
895
decertification petition filed on behalf of the
production and maintenance employees on April 16,
1968 3 For the reasons explicated below, we find no
merit in the Respondent's contention of good-faith
doubt, and in agreement with the Trial Examiner we
find that the Respondent violated Section 8(a)(1)
and (5) of the Act
Adopting the Trial Examiner's credibility
resolutions, we find that following the end of the
strike the Respondent undertook a course of
conduct calculated and contrived to undermine the
Union and destroy its majority status. In December
1967, an admitted supervisor of the Respondent, Bill
Curtis, told employee Luther McCray that if the
employees got rid of the Union they would have
better working conditions.
In April 1968, the Respondent's superintendent,
George Locher, told employee Bernard Tucker that
he had heard that Tucker had been to other
employees about joining the Union, and Locher
threatened Tucker that if he had been successful in
his solicitations he would have been fired. On
another occasion a few weeks later Locher
interrogated Tucker as to whether he had signed the
petition being circulated to get rid of the Union.
During the period of time when the Respondent's
agents were engaging in the above-described acts
and conduct, other of its supervisory and
management officials were engaged in lending
unlawful assistance to the employees in the
circulation and solicitation of signatures for the
decertification petition Considering the evidence in
the posture most favorable to the Respondent's
contentions, the record reveals that employee Ben
Striblin approached Supervisor James Mitchell and
inquired what the employees could do to get rid of
the Union. Mitchell reported the matter to the
Respondent's vice president, Donald McDaniel, and
on the basis of information provided by McDaniel,
which he in turn had received from the Respondent's
director of industrial relations, Norton Wilcox,
Mitchell reported back to Striblin that he would
have to get the signatures of 51 percent of the
employees to have an election It is clear, however,
as found by the Trial Examiner, that the conduct of
the Respondent's agents did not cease with
Mitchell's mere ministerial act of furnishing
information to Striblm.° In March or April 1968,
Mitchell approached employee Thomas Lee Stewart,
informed him that "they" were getting up a petition
to obtain an election, and asked Stewart to circulate
the petition and to obtain as many signatures as
possible. Stewart obtained the petition from another
employee, signed it, and in accord with Mitchell's
directions obtained the signatures of six other
employees At a later time, at the specific direction
of Mitchell, Stewart also obtained the signature of
'Case 11-RM-141
'Case lI-RD-142
'In the absence of exceptions , we adopt the Trial Examiner ' s finding that
174 NLRB No. 129
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee Striblin When Stewart had complied with
Mitchell's directions, he inquired as to what should
be done with the petition and was advised by
Mitchell that it should be turned over to him.
Stewart surreptitiously passed the petition to
Mitchell, and Mitchell in turn delivered it to Vice
President McDaniel
From the foregoing, and other evidence in the
record, it is clear that both McDaniel and Wilcox
were aware of the decertification petition through
the information provided by Mitchell and other
supervisors Through Mitchell they informed the
employees of the number of signatures necessary,
and after the signatures had been obtained with at
least the partial assistance of Mitchell, McDaniel
directed Mitchell to obtain the petition and return it
to him Moreover, after the petition had been
delivered to McDaniel he consulted with Wilcox,
and the latter, sua sponte, contacted the Executive
Director for the Merchants Association of
Greensboro and obtained assistance for the
employees in filing the petition.
We find, therefore, in agreement with the Trial
Examiner and contrary to the Respondent's
contention, that the decertification petition,
circulated and signed as it was through the
Respondent's unlawful conduct, did not raise a valid
question concerning representation, and could not,
accordingly, serve to justify its refusal to bargain 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Boren Clay Products
Company, Pleasant Garden, North Carolina, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
the Respondent 's unlawful conduct in conjunction with the decertification
petition arose only from its assistance and participation, and that it did not
initiate the petition
'Suburban Homes Corporation . 173 NLRB No 80
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F FUNKE, Trial Examiner Upon a charge filed
April 18, 1968, and an amended charge filed June 27,
1968, by United Brick and Clay Workers of America,
AFL-CIO, herein the Union, against Boren Clay Products
Company, herein the Respondent, the General Counsel
issued complaint dated June 28, 1968, alleging Respondent
violated Section 8(a)(1) and (5) of the Act
The answer of Respondent denied the commission of
any unfair labor practices
This proceeding, with the General Counsel and
Respondent represented, was heard before me at
Greensboro, North Carolina, on Tuesday, August 20,
1968. At the conclusion of the hearing the parties were
given leave to file briefs and briefs were received from the
General Counsel and Respondent on September 18
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT
Respondent is a North Carolina corporation operating
a plant at Pleasant Garden, North Carolina, where it is
engaged in the manufacture of bricks and related
products From its Pleasant Garden plant Respondent,
during a representative 12-month period, sold and shipped
products valued in excess of $50,000 to places outside the
State of North Carolina
Respondent is engaged in commerce within the meaning
of the Act
II LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III THE UNFAIR LABOR PRACTICES
A. Violations of Section 8(a)(1)
Luther McCray testified that he had been employed by
Respondent since 1964 in the loading zone and that his
foreman was Bill Curtis. Before Christmas of 1967 he
asked Curtis why the Christmas bonus was going to be cut
in half' and Curtis told him it was because the men had
gone on strike (McCray stated the men had been on
strike for about 6 months during 1967 ) He further
testified that Curtis told him that if the men got rid of the
Union they would have better working conditions'
Curtis testified that he was supervisor of the loading
zone and that, in response to McCray's inquiry, he told
him that since the bonus was based on 2 percent of an
employee 's annual earning and they had been on strike for
6 months' he assumed it would be cut down some ' He
denied telling McCray the men would have better
conditions if they got rid of the Union.
I find no violation in Curtis's statement that the bonus
would be cut because the men went on strike. Since the
bonus was based on the amount of their annual wages and
since they did not receive wages while on strike the cut
was inevitable and in no way discriminatory Neither
wages nor a bonus based on wages are required to be paid
employees while on strike This is elementary and should
not have been litigated
I do credit McCray's testimony that Curtis told him the
men would have better working conditions if they got rid
of the Union and find the statement a violation of Section
8(a)(l)
The Union had been certified as collective bargaining representative of
the employees on June 20 , 1966, following a National Labor Relations
Board election held June 10 , 1966 for all produc t ion and maintenance
employees at the Employer's Pleasant Garden , North Carolina , plant,
excluding all office clerical employees , guards, professional employees,
truckdrivers , mechanics and supervisors as defined in the Act
It was stipulated that the strike lasted from March 20 to the first week
in September, 1967
'McCray testified that he thought his 1966 bonus was about $76 and
that his ' 67 bonus was about $56
BOREN CLAY PRODUCTS
Talmadge Martin testified that he had been employed
by Respondent for some 20 years and that his foreman
was James Mitchell In early March he had a
conversation with Mitchell, in which he complained about
the money he was making Mitchell allegedly told him
that if he got the Union out the Company might pay more
money
James Mitchell testified that Martin complained to him
about the money he was making and that he told Martin
there was nothing he could do and that he would have to
see the union men because there was nothing the
Company could do about giving him more money
I credit Mitchell and find no violation of the Act in his
statement that there was nothing the Company could do
about getting more money for men and to see the Union
At this time the Union was the authorized bargaining
agent and the Respondent was prohibited from granting
unilateral wage increases
Thomas Lee Stewart testified that he worked, with
interruptions, for Respondent since 1964, that he last quit
in April, 1968, and that his foreman had been James
Mitchell About 3 or 4 weeks before he quit Mitchell
came to him and told him "they" were getting up a
petition to get another election and asked him to circulate
it. As directed by Mitchell he went to the kiln room
foreman's office where Paul Fields, an employee, gave
him a piece of paper (General Counsel's Exhibit 3) which
read, in handwriting
We the employees of Boren Clay Products do not
want to be represented by the Brick and Clay Workers
Stewart signed the paper (his is the first signature) and
was asked by Fields to get as many employees as possible
to sign it. Stewart took the paper to Mitchell who told
him to get as many employees as possible to sign it
Stewart testified that it took him about 25 or 30 minutes
to get the signatures of the six other employees who
signed it '
When the signatures had been obtained Stewart asked
Mitchell what to do with it and Mitchell said to give it to
him They went behind a wall where Stewart "slipped" it
to him Later Mitchell asked him to get the signature of
Benny Striblin, an employee who was out sick, which he
did. On the following Monday Mitchell asked him for the
petition and Stewart gave it to him
According to Stewart, Mitchell also asked him to help
Ruben Brow in the No 2 Room in obtaining signatures
Mitchell testified that Ben Striblin approached him at a
time fixed as shortly before the assassination of Martin
Luther King and asked him if there was not something he
could do about getting rid of the Union Mitchell told him
he did not know and when Striblin came back about 2 or
3 days later Mitchell again told him he did not know but
then went to Donald McDaniel, vice president of
Respondent. McDaniel told him nothing but when Striblin
made a third request for information Mitchell told him
that McDaniel told him he (Striblin) would have to get
the signatures of 51 percent of the employees to hold
another election
Mitchell further testified that Stewart came to him and
asked him what to do about getting up a petition to get
rid of the Union and that he told Stewart he had heard
that the employees in the kiln room "was carrying
something around " Later Stewart came to him and told
him he had a "paper" in his locker with some names on it
and wanted to know what to do with it Mitchell went to
'These were employees in the No I Making Room where Striblin
worked Mitchell was their foreman
897
McDaniel who told him to get the paper Mitchell got it
and delivered it to McDaniel
Bernard Tucker testified that he had been employed by
Respondent for two and a half years, that Bill Curtis was
his foreman and that George Locher had been his
foreman. About the middle of April, 1968, after he had
been out sick for a week, he returned and Locher asked
him if he wanted his job back He answered affirmatively
and Locher then told him he had heard that he (Tucker)
had been talking to other employees about joining the
Union When he denied it Locher told him that had he
"got the new boys to loin the Union" he would have been
fired
Three or four weeks later Locher asked him if had
signed the "paper" the "boy" was taking around to get
rid of the Union Tucker never saw the paper and never
signed it
George Locher testified that he was Tucker's foreman
in May of 1968, that he never had a conversation with
Tucker concerning his union activity, never threatened
Tucker with discharge for talking union to other
employees and-never asked him if he had signed any paper
to get rid of the Union
Based on my observation of the two witnesses I credit
Tucker ' Based on this credibility finding I conclude that
Respondent violated Section 8(a)(1) of the Act by telling
Tucker that he had heard Tucker had been talking to
other employees about joining the Union and that if he
had succeeded in getting new employees to join the Union
he would have been fired I find these statements, coupled
in the same conversation, a clear threat that Respondent
would exercise reprisals, including discharge, against
employees engaging in union activity
I find further violation in Locher's interrogation of
Tucker as to whether he had signed the decertification
petition then being passed around the shop
B Violation of Section 8(a)(5)
L E. Messer, vice president of the Union, testified that
following the certification of the Union in June of 1966,
bargaining negotiations were conducted from September,
1967, until April, 1968 A meeting was scheduled at the
O'Henry Hotel in Greensboro for April 17 and he and
Woodrow McCleod, a union representative arrived at the
hotel on the 16th They were informed by the hotel that
no room had been reserved for the meeting and shortly
thereafter were given a message (General Counsel's
Exhibit 5) from Norton Wilcox, a negotiator for
Respondent, stating the meeting had been called off due
to the filing of a petition for an election with the NLRB
The parties did not meet again
Norton Wilcox, director of industrial relations for
Respondent, testified that he did leave such a message for
Messer. On April 16 Bill Jones, president of the
Respondent, received a telegram (Respondent's Exhibit 1)
from Lewis Hamlin, an attorney, stating a decertification
petition had been filed and requesting that no further
negotiations be held until the question concerning
representation had been settled
Wilcox further testified that in the spring of 1968 he
had heard from the plant superintendent and the plant
manager that the employees were asking questions as to
how they could get out of the Union and that he told
them and the foremen not to get involved. He did tell
'Specifically my finding is not based on the General Counsel's
cross-examination of Locher, which contributed nothing
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDaniel that the employees would have to obtain the
signatures of 51 percent of the employees in the unit to a
petition stating they did not want to be represented by the
Union
Benjamin Striblin, called as a witness by Respondent,
testified that he had been employed by Respondent for
about 8 years He had participated in the 1967 strike and
stated that ever since the strike there had been talk about
getting rid of the Union among the employees and that a
little before March, 1968, he went to James Mitchell, his
foreman, and asked him how they could get rid of the
Union Mitchell told him he would find out and let him
know but he received no reply and about 3 weeks later
asked him again Again he received no reply and went
back to Mitchell for a third time and was told that "they"
would have to have one-half or "a little better signatures
on a piece of paper." Striblin got a paper and "started to
try to get some names on it" He thought he got one or
two. (This was about the time of Dr King's death )
Striblin then became ill with pneumonia and was out for
10 or 12 days Before he left he gave the paper to Stewart
and asked him to pass it around and when he came back
to work he signed it He then took the paper from
Stewart and put it in his locker and told Mitchell where it
was and never saw it again until he and Paul Fields took
it to a lawyer in Winston-Salem (Fields had five pieces of
paper with signatures when they went to Winston-Salem )6
Bascom Bass , called by Respondent, testified that he
had been employed by Respondent and that after the
strike he had discussed the Union with John Herbin,
another employee and Ben Striblin. It was Bass's opinion
that the Union had done nothing for the men and, in
testimony which is very vague, he stated he was asked by
Striblin to carry a "paper" but that he never did carry it
(He signed it the day after Dr King was killed.) The
discussion about the paper took place at the time Striblin
became ill.
The testimony of Bascom Bass was introduced by
Respondent to establish that action to disavow the Union
originated among the employees and was not instigated by
Respondent
While I do not find that Respondent initiated the
petition to decertify the Union, I do find that Mitchell
participated in the circulation of the petition to an
unlawful extent. Mitchell, on testimony which I credit,
gave Striblin the information requested (three times) as to
the means whereby he could get rid of the Union;' told
Stewart where he could find the petition and told him to
get as many signatures as possible and, when Stewart
asked him what to do with it, he told Stewart to give it to
him Mitchell later delivered the petition to McDaniel
Since neither McDaniel nor Fields testified in the
proceeding it is not known how the petition was obtained
by Fields after its delivery to McDaniel, nor how Fields
obtained Hamlin, a lawyer in Winston-Salem, for the
purpose of processing the petition.
It is my conclusion that by this conduct and the
inferences to be drawn therefrom that the Respondent
violated Section 8(a)(1) of the Act. Since Respondent's
'Fields , identified as a shop steward , was not called by either party
'Standing alone I would not find the information passed by Mitchell to
Striblin a violation Most of the employees who testified were barely
literate and the only person from whom they could seek advice was
Mitchell They were at least entitled to knowledge as to the procedure
required by the Board to decertify a union and they were unlikely to seek
this information from their union representative Mitchell's error was in
pursuing the matter further and becoming an active participant I therefore
find his entire course of conduct tainted with illegality
own unlawful conduct contributed substantially to the
circulation and signing of the petition I cannot find that
Respondent could assert a good-faith doubt as to the
Union's majority status on April 16, 1968. The record is
clear that Respondent was anxious to have the employees
disavow the Union and engaged in the unlawful practices
found herein in furtherance of its purpose. By so doing
and by then refusing to meet with the Union on April 17
it violated Section 8(a)(5) of the Act
IV. THE REMEDY
Having found that Respondent engaged in and is
engaging in certain unlawful practices I shall recommend
that it cease and desist from the same and take certain
affirmative action necessary to effectuate the policies of
the Act
Upon the basis of the foregoing findings and
conclusions and upon the entire record in this case, I
make the following
CONCLUSIONS OF LAW
I By interfering with, restraining and coercing its
employees in the exercise of the rights guaranteed by
Section (7) of the Act, as found herein, Respondent
violated Section 8(a)(I) of the Act.
2. By refusing, on and after April 16, 1968, to bargain
collectively with United Brick and Clay Workers of
America, AFL-CIO, as the exclusive bargaining
representative of the employees in the unit found
appropriate herein Respondent violated Section 8(a)(5)
and (1) of the Act
3 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
It is hereby recommended that Boren Clay Products
Company, its officers, agents, successors and assigns,
shall
1. Cease and desist from:
(a) Telling its employees they would enjoy better
working conditions without the Union; threatening
employees with discharge or other reprisal if they engaged
in union activity, encouraging and assisting its employees
in seeking revocation of the Union's authority, asking
them if they had signed a petition revoking the Union's
authority
(b) Refusing to bargain collectively with the United
Brick and Clay Workers of America, AFL-CIO, as the
exclusive bargaining agent of its employees in the unit
found appropriate herein
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon request bargain collectively with the
above-named Union as the exclusive bargaining
representatives of its employees in the unit found
appropriate herein with respect to wages, rates of pay,
hours, and other terms and conditions of employment and,
if agreement is reached, embody such understanding in a
written agreement.
(b) Post at its plant at Pleasant Garden, North
Carolina copies of the notice attached hereto and marked
"Appendix "e Copies of said notice to be provided by the
Regional Director for Region 11, shall, after being duly
signed by the Respondent's authorized representative, be
'1n the event that this Recommended Order is adopted by the Board, the
BOREN CLAY PRODUCTS 899
posted by Respondent immediately upon receipt thereof,
and shall be maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision
what steps it has taken to comply herewith'
IT IS HEREBY FURTHER RECOMMENDED that all
allegations of the complaint not specifically found to be in
violation of the Act shall be dismissed
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 "a decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 11 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
WE WILL NOT threaten our employees with discharge
because they engage in union activity or try to get other
employees to join the Union
WE WILL NOT assist or encourage our employees in
passing around a paper or petition for the purpose of
getting rid of the Union, or ask them if they had signed
the petition
WE WILL, upon request, bargain collectively with
United Brick and Clay Workers of America,
AFL-CIO, as the exclusive bargaining agent of our
employees in the following unit with respect to wages,
rates of pay, hours and other terms and conditions of
employment and, if agreement is reached, sign a written
contract covering such agreement. The employees in the
appropriate unit are:
All production and maintenance employees at the
Employer's Pleasant Garden, North Carolina, plant,
excluding all office clerical employees, truckdrivers,
mechanics and supervisors as defined in the Act.
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
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT tell our employees they would enjoy
better working conditions without the Union.
Dated By
BOREN CLAY PRODUCTS
COMPANY
(Employer)
(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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1642 Wachovia
Building, 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 723-2392