Buzza-Cardoza

National Labor Relations Board - Board Decisions

Jan 30, 1952

97 N.L.R.B. 1342 (N.L.R.B. 1952)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. In its petition, Petitioner described the unit as consisting of the
Employer's production and maintenance employees. However, at the
hearing it joined with the Intervenor in a stipulation to exclude the
Elnpioyer's shipping and receiving clerks, warehousemen, and truck
drivers." It thus seeks a unit of the Employer's machinists and black-
smiths, excluding all other employees and supervisors. In the alter-
native it is willing to represent the Employer's blacksmiths as a sep-
arate unit. The Intervenor contends that neither unit proposed by
the Petitioner is appropriate.
Although the blacksmiths and the machinists work in the same room
and are under the same supervision, their functions are substantially
different, and there is no interchange between the two groups. For
this reason, and especially because of the substantial history of sep-
arate representation, we find that a single unit composed of the Em-
ployer's blacksmiths and machinists is inappropriate.8
We find that all the blacksmiths employed at the Employer's Port-
land, Oregon, plant including headers and heaters, but excluding all
other employees and all supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
4 The shipping and receiving clerks and warehousemen are currently represented by
Warehousemen Local 206, AFL, and the truck drivers are represented by the Teamsters
Local 162, AFL.
8 Cf. Heyden Chemical Corporation, 85 NLRB 1181.
BUZZA-CARDOZA and EDWARD E. BACA
BUZZA-CARDOZO and SIGN AND PICTORIAL PAINTERS LOCAL 831, BROTH-
ERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA,
A. F. OF L. Cases Nos. 21-CA-1004 and 21-CA-1102. January 30,
1952
Decision and Order
On August 23, 1951, Trial Examiner Martin S. Bennett 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent did not engage in certain other alleged unfair labor
practices and recommended that the complaint be dismissed with re-
97 NLRB No. 210.
BUZZA CARDOZO 1343
spect to such allegations. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.'
The Board 2 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications and exceptions
noted below.
We agree with the Trial Examiner that the 11 named employees
concertedly withheld their services from the Respondent in order
to enforce their wage demands and that they thereby engaged in con-
certed activitiy for mutual aid and -protection within the intendment
of Section 7 of the Act. For this reason we find, as did the Trial
Examiner, that the Respondent's discharge of these employees violated
Section 8 (a) (1) of the Act.3 As these employees by their concerted
action constituted themselves a labor organization within the meaning
of Section 2 (5) of the Act, we further find in agreement with the
Trial Examiner that by discharging these employees the Respondent
also discriminated against them in regard to their hire and tenure
of employment to discourage membership in such organization 4
The Respondent, relying chiefly on the court's decision in the Draper
case,-5 contends that the employees in question engaged in an unpro-
tected "wildcat" strike in derogation of the Union selected by them
as their collective bargaining representative. We do not believe that
the principle of that case is applicable here. In the Draper case,
unlike the present case, a minority engaged in an unauthorized strike
while the union, to whom the employer had given unqualified recogni-
tion in an appropriate unit, was in the midst of negotiating a contract
with the employer. In these circumstances, the court upheld the em-
ployer's right to discharge the "wildcat" strikers, observing that a
minority "has no right to take independent action to interfere with
the course of bargaining which is being carried on by the duly au-
thorized agent chosen by the majority." Plainly this was not the
1 The General Counsel also filed exceptions to the Trial Examiner's dismissal of the
Section 8 ( a) (5) allegations of the complaint. By motion , which the Respondent does
not oppose , the General Counsel requests permission to withdraw his exceptions. The
motion is hereby granted.
2 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 Herzog and Members Houston and Styled.
a N. L. If. B. v. Kennametal, Inc , 182 F 2d 817.
Albid; of N. L. R B V. Globe Wireless, Ltd., 193 F. 2d 748 (C. A. 9), decided December
27, 1951. In finding 8 (a) (3), we however do not adopt the implication in the Inter-
mediate Report that the discrimination tended to discourage membership in the Union
as the record does not disclose that the concerted activity involved in this case was
associated with the Union.
5 N. L. If. B. v. Draper Corporation , 145 F. 2d 199 (C A. 4).
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situation that prevailed in the present case. As shown in the Inter-
mediate Report, the Respondent refused to recognize the Union be-
cause it did not represent a majority in an appropriate unit. Ac-
cordingly, the employees' right to take concerted action was not affected
by their earlier designation of a bargaining representative. In sum,
we find that the employees were privileged to assert their rights, as
they did, through their own joint action rather than through the
Union s
The Respondent also contends that no violation of Section 8 (a)
(3) could be found because of the absence of evidence of antiunion
motivation. We find no merit in this contention. It is settled law
that where, as here, an employer discharges employees because of
their protected concerted activity, his motives are not relevant'
The Remedy
Like the Trial Examiner, we find that whether the discharges be
viewed as a violation of Section 8 (a) (1) or 8 (a) (3) of the Act
effectuation of the policies of the Act requires that the 11 named
employees be granted immediate and full reinstatement with back
pay as herein provided.
It has been the Board's practice not to award back pay to employees
'discriminatorily discharged while on strike during the period when
they remain on strike on the theory that until it appears that the
employees who desire employment have given up the strike it cannot
be established that the loss of pay was conclusively attributable to
the employer's conduct 8 The record shows that eight employees 9
unsuccessfully sought to return to work on January 19, 1951, and
thereby clearly indicated that they had given up the strike. In these
circumstances we shall, unlike the Trial Examiner, order back pay
only from that date-rather than the date of discharge-to the date
of the Respondent's offer of reinstatement, to be computed in the
manner provided in the Intermediate Report.
6 We note that the Respondent did not refuse to deal with the employees in question
because of any belief that they were usurping their bargaining representative 's authority,
but instead received , considered , and rejected their grievance . Nor did it discharge them
for interfering with their representative 's bargaining functions.
7American Shuffleboard Co. v. N. L. R B, 190 F. 2d 898 (C. A. 3) ; The Office To-Wei
Supply Company, Incorporated, 97 NLRB 422. Equally untenable is the Respondent's
contention that no violation of Section 8 (a) (3) was proved because of the absence of
evidence that its conduct resulted in, or had as its purpose , the discouragement of member-
ship in a labor organization. All that the Act requires tD establish a violation of Section
8 (a) (3) is that the discharge have the natural tendency to encourage or discourage
membership in a labor organization . N. L. If. B. v. J. G. Boswell Co., 136 F. 2d 585,
S95-596 (C. A. 9).
8 See, for example , Massey Gin and Machine Works, Inc., 78 NLRB 189; Kallaher and
Mee, Inc., 87 NLRB 410.
9 Winifred Hohlbauch, Hortense Perez, Phyliss T. Shelter , Edward E. Baca, William
J. Goldie, Gwenyth Hallen, Caroline Kudlik, and William Howlett.
BUZZA CARDOZO 1345
The record also indicates that, although two employees (Leonard
H. Barnet and David Dones) did not return to work on January 19,
1951, this was because they had received their discharge letters with
accrued wages the day before, and not because they continued to strike
after January 18. In these circumstances, it is clear, and we so find,
that the loss of pay sustained by them after January 18, 1951, was
solely attributable to their discharge and not to the fact .that they
were on strike10 With respect to the remaining employee (Ruth
Rudolf), there is no evidence as to the cause of her loss of wages.
Accordingly, we shall leave it to compliance to determine the date
back pay accrued to her.
We shall also order the Respondent to cease and desist from in any
other manner infringing upon their employees' rights guaranteed in,
Section 7 of the Act. We find that such an order is necessary to,
satisfy the remedial objectives of the Act because the discriminatory
discharges reveal an attitude of opposition to the purposes of the
A ct.11
Order
Upon the entire record in the case, and pursuant to Section 10 (c>
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Buzza-Cardozo,
Los Angeles, California, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its%
employees, by discriminating against its employees in any manner
with regard to their hire or tenure of employment or any term or
condition of employment, except to the extent permitted by Section S
(a) (3) of the Act.
(b) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement,
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
10 Alth ^ugh an application for reemployment conclusively demonstrates that the em-
ployees involved have ceased striking, the Board, in the Massey Gin and Kallaher and Mee
line of cases , did not intend to make an application for reinstatement the sine qua non for
the commencement of back pay for discharged strikers . Where, as here, there is other
evidence which demonstrates that the loss of wages was caused by the discriminatory:
discharge and not by the strike , such evidence suffices.
11 N. L . R. B. v. Entwistle Manufacturing Company, 120 F . 2d 532, 536 ( C. A. 4).
0
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to the 11 employees named in the Appendix attached
hereto, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges.
(b) Make whole the aforesaid 11 employees for any loss of pay
they may have suffered by reason of the Respondent's discrimination
against them in the manner set forth in "The Remedy" section of the
Board's decision.
(c) 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 rec-
ords necessary to analyze the amounts of back pay due under the
terms of this Order.
(d) Post at its plant at Los Angeles, California, copies of the notice
attached hereto as an Appendix.12 Copies of such notice, to be fur-
nished by the Regional Director for the Twenty-first Region, shall,
after being duly assigned by Respondent's representative, be posted
immediately upon receipt thereof and maintained by it for sixty (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 such notices are not
altered, defaced, or covered by any other material:
(e) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
IT Is FLrRTIIER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent has refused to bargain collectively with
Sign and Pictorial Painters Local 831, Brotherhood of Painters,'
Decorators and Paperhangers of America, A. F. of L., in violation of
Section 8 (a) (5) of the Act.
Appendix
NOTICE TO ALL EMPLOYERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees, by discriminating against our employees in any
1' In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
BUZZA CARDOZO 1347
manner with regard to their hire or tenure of employment or any
term or condition of employment, except to the extent permitted
by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form, join , or assist any labor organization , to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any
or all of such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment , as authorized in Section 8
( a) (3) of the Act.
WE WILL offer the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions , without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make them whole for' any loss of
pay suffered as a result of the discrimination against them, in the
manner set forth in "The Remedy" section of the Board's de-
cision.
Winifred Hohlbauch Gwenyth Hallen
Hortense Perez Caroline Kudlik
Phyllis T. Shelter David Dones
Edward E. Baca Ruth Rudolf
William J . Goldie William Howlett
Leonard H . Barnet
All our employees are free to-become , remain, or to refrain from
,becoming or remaining, members of any labor organization , except to
the extent that this right may be affected by an agreement authorized
by Section 8 (a) (3) of the Act. _
BUZZA-CARDOZO,
Employer.
Dated-------------------- By-------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days and must not
be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon separate charges filed respectively by Edward E. Baca, an individual,
and by Sign and Pictorial Painters Local 831, Brotherhood of Painters, Decorators
and Paperhangers of America, A. F. of L., herein called the Union, the General
Counsel of the National Labor Relations Board caused the cases to be consoli-
dated and issued a consolidated complaint, dated June 22, 1951, against Buzza-
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cardozo, herein called Respondent. The complaint alleged that Respondent had
violated Section 8 (a) (1), (3), and (5) of the National Labor Relations Act,
as amended, 61 Stat. 136. Copies of the charges, complaint, order consolidating
cases, and notice of hearing thereon were duly served upon Respondent.
Specifically, the complaint alleged that (1) on or about January 18, 1951,
Respondent had discharged 11 named employees' because they had engaged in
lawful concerted activities for their mutual aid and protection and because they
had engaged in a strike, and (2) the Union represented a majority of the em-
ployees of the silk screen department, an appropriate bargaining unit, and that
on and after November 8, 1950, Respondent had refused to bargain with the
Union as the representative of said employees. Respondent, in its answer, denied
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Los Angeles, California, from July
16 through 19, 1951, inclusive, before the undersigned Trial Examiner, Martin
S. Bennett. The General Counsel, the Union, and the Respondent were repre-
sented by counsel who participated in the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. After the General Counsel rested, Respondent
moved for the dismissal of the complaint and the motion was denied. The motion
was renewed at the conclusion of the hearing, ruling was reserved, and it is
disposed of by the findings hereinafter made. The undersigned also granted a
motion by the General Counsel to conform the pleadings to the proof with
respect to purely formal matters. All parties were afforded an opportunity to
argue orally upon the record, as well as to file briefs and/or proposed findings
and conclusions. The General Counsel and Respondent presented oral argumeiit
and a brief has been received from Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Buzza-Cardozo is a California corporation whose principal plant and place of
business is located at Los Angeles, California, where it is engaged in the manu-
sale, and distribution of greeting cards. In the course of its business,facture,
Respondent annually purchases and causes to be shipped to its Los Angeles plant
from points outside the State of California materials, equipment, and supplies
valued in excess of $300,000. Respondent annually sells and causes to be shipped
from its Los Angeles plant to States of the United States other than the State
of California, greeting cards valued in excess of $300,000. The undersigned
finds that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Sign and Pictorial Painters Local 831, Brotherhood of Painters, Decorators and
Paperhangers of America, A. F. of L., is a labor organization admitting to mem-
bership employees of Respondent.
1 Their names are
Winifred Hohlbauch William J. Goldie David Dones
Hortense Perez Leonard H. Barnet Ruth Rudolf
Phyllis T. Shelter Gwenyth Hallen William Howlett
Edward E . BAca Caroline Kudlik
BUZZA CARDOZO
III. THE UNFAIR LABOR PRACTICES
A. The discharges
1. Introduction
1349
The employees of Respondent Company have never been represented by a labor
organization. In October 1950, some interest in union representation developed,
among the approximately 17 employees in the silk screen department, of whom
13 signed cards on or before October 30, designating the Union as their bargaining
representative. Certain contacts with management relative to union representa-
tion took place during November and December and are set forth hereinafter in
the discussion of the alleged refusal to bargain. On November 27, the Union
filed a petition for certification of representatives, in Case No. 21-RC-167, in a
unit described as "Screen Process Department including stencil cutters, squeeze
(squeegee) pushers, rackers, paint mixers and inspectors." The petition was
withdrawn in March of 1951, and the charges herein were processed.
2. The grievance ; the strike of January 18
The discharges herein at issue resulted from the presenting of a grievance to
management by the employees of the Silk Screen Department and the details
follow. On January 17, 1951, there were approximately 18 employees in the silk
screen department. These included 7 printers, 1 leadman, hereinafter found
not to be a supervisor, 1 printer's apprentice, and 9 helpers. The department
was under the supervision of Foreman Ed Walz who was also in charge of the
"Air and hand-color" department, which had 2 employees.
The employees of the silk screen department had been under an incentive
system for a number of months prior to the period material herein, whereby a
production bonus was paid to those who produced in excess of their assigned
quota. For some time prior to January 17 there had been dissatisfaction among
the employees over the operation of the system, and on the latter date this
came to a head, the immediate cause being the failure of helpers to receive a
production bonus under the system in one or more weeks immediately preceding.
It appears that this condition resulted from the fact that there were more
helpers than printers and that due to the lumping of the earnings of the helpers,
no bonus resulted for them. The exact details of the system and its workings
are not deemed to be material herein and are therefore not set forth.
As stated, matters came to a head on the morning of January 17. A group
of employees with Leonard Barnet, a printer, as chief spokesman, spoke to Fore-
man Ed Wal7, and informed him that they were disturbed because the helpers
were not currently receiving a bonus under the incentive plan. Walz agreed
to call in Assistant Office Manager Ronis to clarify the system. Shortly before
noon, Ronis spoke to the employees concerning the plan and pointed out why
the helpers were not receiving a bonus at the time. At this juncture, the em-
ployees raised the issue of a wage increase for the department. Ronis dis-
claimed any authority in that field and it was arranged for Production Manager
Verhaaren to meet with the employees at approximately 3 p. m.
The meeting was duly` held and Verhaaren listened to the complaints of the
silk screen department employees.' He told the employees that the helpers were
2 There-is no.substantial conflict concerning the events of January 17, and the findings
which follow are based primarily on the testimony of ,Verhaaren and Foreman Walz, which
is in agreement with that of the employees involved.
986209-52-vol 97-86
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earning the same rate as those elsewhere in the plant and that if the printers
were to produce more, the helpers, under the incentive plan, would earn more.
The employees then took the position that their earnings were too low and that
they required a wage increase in order to keep up with living costs. Verhaaren
replied that he did not have the authority to grant an increase, but that he would
take up the matter with the board of directors which happened to be meeting
at the plant that very afternoon and report back to the employees later in the
day.
At 4 p. m. Foreman Walz instructed the employees of the silk screen depart-
ment to wash up, and at 4: 10 Verhaaren returned from his meeting with the
board of directors. He informed the assembled employees that the directors
were unwilling to grant a wage increase at that time because plant production
was low. This visibly upset the employees and some excitedly pointed to their
inability to make ends meet on the basis of current earnings. Several then
stated that the best course of action would be to stay away from work for at
least a day in an effort to persuade and influence management to view things
their way. The meeting ended several minutes after the 4: 30 closing bell rang.
As it broke up, one or more members of the group declared that they would not
report for work on the following day. According to Verhaaren, it appeared
quite uncertain whether they would report. He informed the employees that
he wanted to see them report for work because he had a production quota to
meet and that anyone not reporting would be replaced.
The undersigned finds that Respondent was thereby put on notice that at
least some of the silk screen department employees intended to engage in a
strike on the following day, January 18. Respondent discovered on the follow-
ing day that of the 18 employees in the department, 11, the claimants herein, did
not appear for work ; these included all the printers, 7 in number, and 4 of the 9
helpers. The undersigned finds that they thereby engaged in a concerted activity
for their mutual aid and protection, specifically, in protest of the refusal by
Respondent to make any adjustments in the incentive plan or wage scales'
Later that morning Verhaaren conferred with R. N. Cardozo, an officer of the
Company. Verhaaren took the position that these employees had quit and recom-
mended their discharge. Cardozo was also in favor of discharging them and
proceeded to confer with his attorney, presumably by telephone. Cardozo notified
Verhaaren, at approximately noon on January 18, that in order to preserve the
records of the strikers, Respondent would treat their termination as a quit
rather than a discharge. Verhaaren immediately removed the time cards of
the 11 claimants, including Hallen and Dones, from the rack.' Verhaaren then
dictated and sent each of the 11 the following letter at approximately noon on
8 Two of the 11, fallen and Dones, actually reported for work on January 18. Hallen
had been absent on January 17, but was aware of the underlying dissension and unrest
with respect to the incentive system. On being informed by those working on January 18
of the decision by the strikers to absent themselves, Hallen informed Foreman Walz that
she was joining the others and left Verhaaren informed those who were present on the
morning of January 18 that they could either work or leave as they chose, Dones, who
had worked on January 17, then started to leave his bench and when Foreman Walz asked
where he was going, Dones waved his lunchbox in the air, said something about joining
the others, and continued out of the plant. The undersigned accordingly finds that Hallen
and Doncs decided on the morning of January 18 to join the strikers and that they then
proceeded to do precisely that, thereby making common cause with those who had absented
themselves that day.
4 There is some evidence that Kudlik, one of the 11 claimants, had arranged to have
her car painted at or about this time , it is not clear whether January 18 was the day in
question and whether she had planned to be absent for the occasion In any event,
Respondent treated her as one of the strikers and its motivation in terminating her, as well
as the legal effect thereof, was no different than in the other cases.
01
BUZZA CARDOZO 1351
January IS The letters, accompanied by checks, were delivered by registered
mail at various times on January 18 and 19. They read as follows :
Since you have quit your job January 18, 1951, and are no longer employed
by this company we are herewith enclosing all compensation due you in full.
'There is no question, in the view of the undersigned, but that this was-intended
to be an effective termination of the employment of each of the 11, and it is so
found.
3. Subsequent events
On Friday morning January 19, a number of those who had been sent the
above-quoted letter and accompanying pay checks appeared at the plant at
the usual reporting hour. At that time but one of the discharge letters, that
of Hohlbauch, had been delivered and the employees, after inspecting and dis-
cussing her letter, spoke to Verhaaren. The group, including Baca, Goldie,
and Hallen, protested that the 11 claimants herein had not quit their employment.
Verhaaren replied that the Company was within its legal rights in taking this
action ; that inasmuch as the 11 had not reported for work the Company had
construed their action as a quitting of employment ; and that everyone's check
with earnings up to date had been mailed. He added that there were no jobs
for them and that he could do nothing further.
Kudlik telephoned Verhaaren later that day, after she had read her letter,
and informed him that she had not quit. He replied that the use of the word
"quit" was a technicality and that he could not permit the group to "get away
with it" because he had to make an example for the rest of the plant. Hallen,
after a few days, wrote to R. N. Cardozo, stated that she had had no intention
of quitting her employment, and asked whether she might be reinstated. On
January 23, Cardozo replied as follows :
I am in receipt of your letter of January 21 and wish to say that you
were not discharged from your job as a Silk Screen Printer but that you
left it of your own volition. I have inquired from . . . (Foreman) Waltz
regarding your statement where you say-"I was told no printers were
going to work on Thursday so I went home." Mr Walz reports that you
checked in the time clock, went to your department and said to him-
"What's the verdict?" He replied that there was no verdict and you looked
around and said-"There's no one here, so I am going to stick with the
gang." He said you then left the building. By leaving without permission
you have, therefore, quit your position and it became necessary for us to
employ someone to replace you. . . . [Emphasis added.]
Respondent's records show that replacements for the 7 printers, Baca, Barnet,
Goldie, Hallen, Kudlik, Perez, and Dones, were not hired prior to the discharge
of the 7 on January 18. Specifically, Respondent hired 1 printer on January 19
and 7 others between January 22 and 25 c The same situation applies with
respect to the 4 helpers terminated on January 18, Hohlbauch, Howlett, Shelter,
and Rudolf ; thus, 8 helpers were hired by the silk screen department between
February 5 and 13. It is clear, and the undersigned finds, that the 11 employees
involved herein were discharged on January 18 prior to their replacement, and
that replacements were not hired for several days in the case of the printers
and for several weeks in the case of the helpers.
4. Contentions and conclusions
Respondent's basic contention herein, namely, that these 11 employees quit
their employment, is unsupported by any evidence. The simple fact is that
5 Their names appear in the transcript.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this group of employees in concert made a request for an improved incentive
plan and in lieu thereof sought a wage increase ; upon the denial of both requests,
they in concert left the plant and absented themselves from work on the fol-
lowing day in an effort to gain the desired benefit or benefits through economic
pressure. The undersigned cannot conceive of a clearer example of a concerted
withholding of employment for mutual aid or protection.
It is true that the employees in question did not report for work but, unlike
the situation of a true quit, there is not an iota of evidence that they intended to,
permanently sever their connection with Respondent.' In fact, the testimony
of the witnesses for both the -General Counsel and Respondent demonstrates
precisely the contrary. It was entirely clear that the members of the group in-
tended to and did temporarily withhold their employment because of a grievance
concerning working conditions, and it is found that they thereby became economic
strikers.
Stated otherwise, the strikers ceased their employment, but it was not a situa-
tion where employees notify their employer that they are permanently quitting.
True, a strike or concerted activity of the type herein involved is by its very nature
a form of quitting of employment, but it is also one which is expressly protected
by the Act and which retains for the principals their status as employees.
N. L. R. B. v. Augusta Chemical Co., 187 F. 2d 63 (C. A. 5) enfg. 83 NLRB 53.
J. I. Case Co., 95 NLRB 47.
As economic strikers, these employees were immune to discharge. They ran
the risk of being permanently replaced prior to discharge, but since the discharges
preceded the hiring of replacements this plea is not available to Respondent.
N. L. R. B. v. Mackay Radio d Telegraph Co, 304 U. S. 333. Likewise, having
been discharged, there was then no duty on their part to apply for reinstatement,
inasmuch as Respondent by discharging them had indicated that a return to
employment was foreclosed. Root-Carlin, Inc., 92 NLRB 1313, and Wood Manu-
facturing Company, 95 NLRB 633. That this was not a tactical maneuver
designed to bring about their return to work is demonstrated by the fact that
when the 1-day strike terminated and some returned on January 19, prior to,
the hiring of permanent replacements, they were again told that they had quit
their employment and that no jobs were open for them. See Kallaher d Mee.
87 NLRB 410.
Nor, contrary to the contention of Respondent, can it be found that these
strikers were insubordinate in violation of company rules. If this be true, any
strike contrary to the desires of an employer constitutes insubordination. The
simple answer is that the Act permits this type of concerted activity, which is
perforce a withholding of employment contrary to the desires of management.
In this sense, it is perhaps true that the employees may have been guilty of
insubordination in that they did not accede to the request of their Employer that
they report for work on January 18; however, as stated, this is a type of in-
subordination permitted by the statute. Consequently, the undersigned finds
that the 11 claimants herein engaged in a protective concerted activity for their
mutual aid or protection and that by discharging them Respondent has interfered
with, restrained, and coerced them in the exercise of the right to engage in such
activities, within the meaning of Section 8 (a) (1) of the Act.
With respect to the Section 8 (a) (3) allegation, Respondent contends that
this activity on the part of the silk screen department employees bore no relation,
6 The sole possible exception is a vague statement attributed to employee Rudolf, who.
did not testify herein, that she could not get by on her current earnings and might have to
look for other employment.
BUZZA CARDOZO 1353
to union activities and that as a result there can be no violation of Section 8 (a)
,(3). In support thereof, Verhaaren testified that he had no knowledge of the
union activities in the silk screen department until shortly before the instant
hearing. On the other hand, Cardozo, who approved Verhaaren's decision to
discharge the employees, had been contacted, as will hereinafter appear, by a
representative of the Union on or about November 8, 1950, with respect to
recognition of the Union as bargaining agent for the silk screen department. He
referred the union representative to his attorney and was presumably familiar
with the fact that the Union had later met with the attorney and that a repre-
sentation petition was filed on November 27, 1950. Consequently, the record
does not support a finding that management was unaware of the union activities
among its silk screen employees. Moreover, by their joint activity, the silk
screen department employees constituted themselves a "labor organization"
within the broad language of the statute. N. L. R. B. v. Kennametal, Inc., 182
F. 2d 817 (C. A. 3), enfg. 80 NLRB 1481. The undersigned therefore further
finds that the discharges herein discouraged adherence to said organization and
were violative of Section 8 (a) (3) of the Act. In addition, it is immaterial
whether they be termed violative of Section 8 (a) (1) or 8 (a) (3), for in either
event the remedy applied by the Board is identical. Smith Victory Corporation,
90 NLRB 2089, enfd. 6/1/51 (C. A. 2), Ohio Oil Company, 92 NLRB 1597,
Dant and Russell, 92 NLRB 307, and Root-Carlin, Inc., supra.
B. The alleged refusal to bargain
1. Sequence of events
The parties stipulated that at the end of October 1950, there were 122 produc-
tion and maintenance employees in Respondent's employ ; this figure apparently
does not reflect the approximately 30 employees in the art department which is
located in a separate office on the second floor of the plant. The silk screen de-
partment, in the week ending October 30, had 17 rank-and-file employees, this
total including Joe Basco, conceded by the General Counsel not to be a supervisor,
and excluding Foreman Ed Walz, clearly a supervisor. Thirteen of the 17 had
signed cards on or before October 30 designating the Union as their bargaining
agent!
On or about November 8, Business Representative Robert Hamill of the Union
telephoned the plant of Respondent, asked for the manager, and was referred to
R. N. Cardozo, an officer of the corporation. He identified himself to Cardozo,
informed the latter that he had some designation cards signed by employees, and
stated that he desired an appointment in order to arrive at an agreement covering
employees of the silk screen department. Cardozo referred Hamill to his attorney,
Carl Gould. Hamill telephoned Gould and an appointment was arranged for
November 17. On that date Hamill and Joseph Devine, then recording secretary
of the Union, called at Gould's office.
! On November 8, the number of employees in the unit decreased to 16. On November
17, it increased to 18, of whom 12 were card signers On December 14, the unit had in-
creased to 19, of whom 11 were card signers. The undersigned finds, on the basis of cards
introduced in evidence, that a majority of the employees in the silk screen department
had duly designated the Union as their bargaining representative at all times material
herein.
There is testimony by card-signer Drew that employees Barnet and Goldie told her, when
she signed, that she did not thereby pledge herself to join the Union. The fact still
remains, however, that she designated the Union as her bargaining representative, as stated
on the face of the card. Moreover, her card does not affect the majority.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Hamill , he informed Gould that the Union took within its juris-
diction all workers engaged in the silk screen process and that he desired to enter
into an agreement covering the employees in the silk screen department. He
specifically included stencil cutters among the employees he sought to represent ;
the record indicates that there are 3 stencil cutters in the employ of Respondent
who are located in a separate department under supervision separate from the
silk screen department . Gould asked why the Union was organizing only the
silk screen department and not the remainder of the plant. Hamill again stated
that the Union was interested solely in employees within its jurisdiction, as
defined by its parent labor organization . He gave Gould a list of employers in
the area with whom the Union had contracts and told Gould, as was the fact, that
he had 13 signed cards from employees in the silk screen department . Hamill
initially testified that he left a proposed contract with Gould, but , on cross-
examination , accepted the latter 's suggestion that no contract had been left.
Devine substantially supported Hamill's testimony . He testified and the
undersigned finds that Hamill announced his majority representation in the unit,
said that the Union could go to the Board if it chose, and that it hoped to handle
the matter informally with Gould . He also attributed to Gould a query why the
Union was restricting its organizational efforts to the silk screen department.
Devine, as well as Hamill , testified' and the undersigned finds that Gould stated
he wanted to familiarize himself with the organizational structure of the plant
and that he would contact the union representatives after conferring with
management.
Gould testified that neither of the union representatives mentioned the number
of employees they represented and that he had suggested that the Union process
a representation case with the Board as there were advantages to having a
certification ; this Hamill denied . Gould claimed that he questioned * the ap-
propriateness of the narrow unit sought by the Union , stating that he was dubious
of the decision by the Union to organize just the silk screen department and not
the entire plant. He made specific reference to the inclusion of stencil cutters
in the unit sought. In these latter aspects, his testimony is corroborated by
Hamill and Devine and is adopted . According to Gould , he did not then fully
appreciate that stencil cutters were in a separate department.
There is support for Gould 's controverted testimony that he had advised the
union representatives to process a case with the Board ; but 10 days later, on
November 27, there having been no communication between the parties in the
interim, the Union filed a petition for certification of representatives in Case No.
21-RC-167 . The unit was described as "Screeir Process Department including
stencil cutters, squeeze ( squeegee ) pushers, rackers, paint mixers and inspec-
tors." All of the named classifications relate to the silk screen department, with
the exception of stencil cutters.
On December 14, a conference was held at the Regional Office of the Board
on the issues raised by the representation petition and was attended by Gould,
Devine, Hamill , and a field examiner ; the testimony of Devine and Gould con-
cerning this meeting is in substantial agreement , and is credited herein. The
field examiner first asked why the Union was interested solely in representing
the silk screen department , and Devine replied that the Union was a craft union
which did not organize outside the jurisdiction assigned by its international.
She asked Gould if he felt that the unit was appropriate and he indicated that
the appropriate unit ought to be plant -wide. Some questions were asked con-
cerning the various classifications in the unit sought , and according to Hamill,
Gould specifically asked why stencil cutters were included . Hamill replied
that they had been included because they were customarily included in units
BUZZA CARDOZO 1355
in other plants and that they were vital to the operation of the silk screen process e
Gould pointed out_ that Respondent maintained its stencil cutters in a separate
department.
Apparently some words were exchanged at the end of the meeting between
Gould and the field examiner with respect to her request for a payroll list. She
did not testify herein, and, according to Gould, he refused to supply one, this
being his practice, until such time as an election was held. On this dissonant
note the meeting ended. There was no further contact, written or oral, between
the parties. The representation petition was withdrawn in March at the sug-
gestion of the field examiner and the withdrawal was approved by the Regional
Director on March 20, after the discharges on January 18, described hereinabove.
2. Conclusions
The undersigned is of the belief that the foregoing factual picture fails to
spell out a refusal to bargain on the part of Respondent on two grounds: (a)
the unit sought was not appropriate and differs from that spelled out in the
complaint, and (b) the conduct of Respondent under all the circumstances does
not constitute a refusal to bargain.
a. The unit
The unit alleged by the complaint to be appropriate is one including all rank-
and-file employees in the silk screen department,' excluding supervisors. The
position of the General Counsel is that the unit sought in effect constitutes
a grouping of craft employees, or, in the alternative, a distinct departmental
group, and is therefore a logical appropriate unit. It is clear, however, that
these employees are not craft employees. Employees are hired who lack prior
training in this work and are assigned outright to work as silk screen printers.
They are immediately able to handle the work and in 6 months' time they have
become proficient and able to handle duties of a difficult nature. Cf. Robertson
Brothers Department Store, Inc., 95 NLRB 271, Davis and Furber Machine
Co., 93 NLRB 372; and Standard Register Co., 84 NLRB 939. Hence, the General
Counsel must rely herein on that aspect of his claim relating to the silk screen
department being an appropriate departmental group.
Considerable testimony was adduced concerning the organizational structure
of the Company. There is no evidence of prior representation of its employees
by a labor organization. Approximately 10 departments are engaged under one
roof in the production process, although in several instances departments have
no foremen ; in those cases the department has a leadman or is under the juris-
diction of another foreman. There is no separation by walls, save in the instance
of the stencil department, which is located in a small room. Otherwise, certain
large bins serve in part to divide the various departments; these are large bins
built up from the floor with openings on either side which are used for storage
of work during the various steps of the production process. Approximately 75
percent of the cards produced by Respondent pass through the silk screen depart-
ment for application of that process. The remainder, for decorative reasons,
omit the process.
The silk screen department has two classifications, printer and printer's helper.
Printers are not transferred to and from other departments, but there is evidence
of the transfer of helpers when needed elsewhere. The helpers are paid a uniform
8 No cases directly in point have been cited on this aspect of the unit question and the
undersigned has not found any.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage scale throughout the plant, but the printers' rate varies from those paid
other classifications. As hereinabove discussed, an incentive piecework system
is in effect In the silk screen department and is also applied in the assembly and
boxing departments ; there is no incentive system in the other departments of the
plant. The silk screen printers obtain stock which has previously been run
through an offset press and place it on their respective benches. Then a silk
screen measuring 18 by 14 inches is placed on the bench and paint poured on it.
The printer proceeds to operate a squeegee over the screen, this resulting in the
application of the paint to the greeting card. - The helpers perform various tasks
incidental to this series of operations.
Assuming that the silk screen department per se constitutes an appropriate
departmental unit, the fact is, as stated, that the Union in its one meeting with
Respondent as well as in its representation petition and the meeting pursuant
thereto at the Regional Office sought to include the three employees of the stencil
department who are located in a separate room and are under separate super-
vision.' Thus, the unit sought by the Union at the meetings on November 17
and December 14 was actually a two-department unit, as Gould pointed out at
the time. The complaint does not allege and the General Counsel does not contend
that stencil cutters should be in the unit, the latter in effect alleging herein that
the stencil cutters constitute a group similar to the composing room in a press
shop. But cf. Messenger Corp., 94 NLRB No. 86; and National Color Printing
Co., Inc., 69 NLRB 395.
Moreover, there is a seridus question whether an appropriate departmental
unit herein ought not to include a department in the plant known as the air
color department. While not sought by the Union herein, the fact is that the
air color department is located immediately adjacent to the silk screen depart-
ment ; there is no physical separation of any sort and the desk of Supervisor Ed
Walz, who is in charge of both departments, is located between the two and
closer to the air color department. This operation, to which but two employees
are assigned , takes up approximately one-half hour per day of Walz' time, the
remainder being devoted to the silk screen department. There is no leadman at
present in the air color department, although prior to its reduction in size it did
have a leadman under Walz' supervision. It appears that the work in the air
color department is diminishing in volume and that it is gradually being replaced
by that done in the silk screen department. In essence, both perform somewhat
similar operations on greeting cards, but the silk screen process apparently lends
itself to more effective and efficient operation.
b. Alleged refusal to bargain; concluding findings
Totally aside from the propriety of the unit alleged to be appropriate by the
complaint, and the unit sought by the Union, it is apparent that a plant-wide
production and maintenance unit, as contended by Respondent, would be ap-
propriate.10 This, of course, need not be the only appropriate unit. And, in view
0 Foreman Ed Walz of the silk screen department testified that the stencil department
was under Foreman Bill Walz Verhaaren testified that the stencil department was under
the supervision of the foreman of the silk screen department , apparently an inadvertence.
In any event , the stencil department is a separate department with a clear line of de-
marcation. In fact, in the production process, work is brought to the silk screen depart-
ment from. the counting department whence it is returned after processing.
10 This would not include a subsidiary corporation , Goldenkrafters,which is fully owned
by Respondent and does lithographing work for the latter. It is located in a building
immediately adjacent to Respondent 's plant which is owned by Respondent; Golden-
BUZZA CARDOZO 1357
of the ambiguity of the departmental unit actually sought by the Union, the-
actual inclusion in said demand of the stencil department, which is under sepa-
rate supervision, and the serious question whether the air color department and
its employees should be included in the appropriate unit, although their inclusion
is not sought by the Union, it is apparent that there is a serious question relative
to the appropriate unit herein. The undersigned is of the belief that the plant-
wide unit urged by Respondent is appropriate but deems it unlikely that the unit
actually sought by the Union, which differs somewhat, from that set forth in
the complaint, is one appropriate for collective bargaining. See Davis and Fur-
ber Machine Co., supra, and Southwest Tablet Manufacturing Co., 93 NLRB 278.
Under all the circumstances, it cannot be gainsaid that a serious question with
respect to unit confronted Respondent Company which was concerned in retain-
ing, as far as possible, uniform working conditions throughout the plant. Inso-
far as the good faith of Respondent is concerned, giving consideration to the
discharges in January, the undersigned is not unmindful of those cases which
hold that insistence of a Board election followed by the commission of unfair
labor practices can constitute evidence of bad faith and a rejection of the
collective bargaining principle. Joy Silk Mills v. N. L. R. B., 185 F. 2d 732
(C. A. D. C.) ; N. L. R. B. v. Everett H. VanKleeck and Co., Inc., 189 F. 2d 516,
(C. A. 2) and Arteraft Hosiery Co., 78 NLRB 333.
The wholly unanticipated situation of a walkout without warning arose in
January 1951, approximately 1 month after the conference at the Board office.
True, Respondent acted illegally in discharging those employees who had en-
gaged in a strike, but it does not necessarily follow that Respondent, faced with
a difficult unit question during the previous November and December, can be
found to have anticipated the changed situation that arose in January and how
it would act thereunder. Significant herein, too, is the fact that there is no
evidence of other unfair labor practices or hostility to the Union on the part of
Respondent. The undersigned is therefore not persuaded that this later conduct
reflects an utter rejection of the collective bargaining principle on the part of
Respondent in its earlier negotiations with the Union" It is felt rather that
Respondent in good faith questiilned the unit sought by the Union. Cf. Celanese
Corporation of America. 95 NLRB No. 83
Moreover, on the entire picture, the evidence in support of the General Counsel's
position is weak. Respondent met with the Union on November 17, when re-
quested, and raised the question of appropriate unit. Ten days later, the Union
filed a representation petition and at a conference held on December 14 under the
auspices of the Regional Director, Respondent again raised the question of appro-
priate unit. The Union did not contact Respondent again. Under these circum-
stances, the undersigned believes that the record, on a preponderance of the evi-
dence, will not support a finding that, even assuming the appropriateness of a unit
restricted to the silk screen department, Respondent has actually refused to bar-
gain with the Union as the representative of the employees in said unit. Wood
Manufacturing Co., 95 NLRB 633.
krafters has 8 to 11 employees who are represented as a craft group, by Amalgamated
Lithographers of America, CIO, Local 22. Gould,' In behalf of Goldenkrafters, has an oral
understanding with President Brandt of Local 22 that working conditions of that organi-
zation will be followed on the job.
11 Employee Barnet testified that leadman Pasco told him, late in October , that Foreman
Walz had reprimanded him, Pasco , for not informing Walz of the union organizational
campaign . Pasco denied engaging in this conversation with Barnet Walz denied making
and Pasco hearing the statement attributed to Walz. Not only is this testimony by
Barnet , if credited , evidence solely of a statement attributed to Pasco, a nonsupervisory
employee, but it fails even as hearsay to shed light on the conduct of Respondent 's policy-
making officials who were directly involved in the January incident.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, the undersigned finds firstly, that the request for
recognition was made for an inappropriate unit; secondly, that Respondent ques-
tioned in good faith the appropriateness of the unit sought by the Union ; and
thirdly, that a preponderance of the evidence does not warrant a finding of re-
fusal to bargain. It is therefore recommended that this allegation of the com-
plaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of Respondent set forth 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has discriminated with respect to the hire and
tenure of the 11 employees named in Appendix A attached hereto, it will be rec-
ommended that Respondent offer to each immediate and full reinstatement to his
former or substantially equivalent position without prejudice to seniority or
other rights-and privileges. See The Chase National Bank of the City of New
York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will further be recom-
mended that Respondent make each whole for any loss of pay suffered by reason
of the discrimination against him by payment of a sum of money equal to that
which he normally would have earned in wages from the date of discharge Jan-
nary 18, 1951,' to the date of Respondent's offer of reinstatement, less net earn-
ings during said period. Crossett Lumber Co., 8 NLRB 440.
Said loss of pay shall be computed on the basis. of each separate calendar quar-
ter or portion thereof during the period from the date of the discriminatory action
to the date of a proper offer of reinstatement. The quarterly periods, herein
called quarters, shall begin with the first day of January, April, July, and October.
Earnings in one particular quarter shall have no effect upon the back-pay liability
for any other quarter. It is also recommended that Respondent be ordered to
make available to the Board and its agents, upon request, all payroll and other
records pertinent to an analysis of the amounts of back pay due. F. W. Wool-
worth Co., 90 NLRB 241.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Sign and Pictorial Painters , Local 831, Brotherhood of Painters, Decorators
and Paper Hangers of America, A . F. of L., is a labor organization admitting to
membership employees of Respondent.
2. By discriminating with respect to the hire and tenure of employment of Wini-
fred Hohlbauch , Hortense Perez, Phyllis T . Shelter, Edward E . Baca, William J.
Goldie, Leonard H. Barnet, Gwenyth Hallen, Caroline Kudlik, David Dones, Ruth
Rudolf, and William Howlett, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 (a) (3) of the Act.
12 See Kallaher and Mee , supra.
ROXBORO COTTON MILLS 1359
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is
-engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
,within the meaning of Section 2 (6) and (7) of'the Act.
5. Respondent has not refused to bargain within the meaning of Section 8 (a)
r(5) of the Act.
[Recommended Order omitted from publication in this volume.]
ROXBORO COTTON MILLS and TEXTILE WORKERS UNION OF AMIERICA,
CIO. Case No. ,94-CA-.17. January 30, 1950
Decision and Order
On July 18, 1951, Trial Examiner Lee J. Best issued his Interme-
ddiate Report in the above-entitled proceeding finding that the Re-
-spondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Labor Man-
ngement Relations Act, as amended, and recommending that the Re-
spondent cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent had not
engaged in certain unfair labor practices in violation of Section 8
(a) (3) of the Act and consequently recommended dismissal of the
allegation of the complaint alleging the discriminatory discharge of
J. Arthur Yarboro. To this recommendation and certain other por-
tions of the Intermediate Report the General Counsel filed exceptions
and a supporting brief. The Respondent filed its statement of objec-
tions and exceptions to the Intermediate Report.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner to
the extent, and with the additions and modifications, indicated below.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by interrogating its employees concern-
ing the Union. Specifically we rely upon the following instances; re-
cited by the Trial Examiner, none of which was denied : Assistant
Superintendent Morrell's prolonged questioning of Newton Yarboro,
plus his questioning of Charlie Snow, Nat Paul, and Ralph Harris;
Overseer Reuben Yarboro's questioning of George Anderson; and
Foreman Beacham O'Bryant's questioning of Marion Ogle.' We also
1 The Trial Examiner referred to three occasions when O'Bryant questioned Ogle.
Actually there were two occasions-O'Bryant's inquiry of Ogle about who went to Durham
for the Union followed immediately employee Wilbur's remarks.
97 NLRB No. 201.