C. & J. Camp, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1954

107 N.L.R.B. 1068 (N.L.R.B. 1954)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. & J. CAMP, INC., CLARENCE CAMP II, MARGARET
HOCKER CAMP LANE, AS THE EXECUTRIX OF THE
ESTATE OF HENRY N. CAMP, D. B. KIBLER, JR., D. B.
KIBLER III, IN A JOINT ENTERPRISE d/b/a/ KIBLER-
CAMP PHOSPHATE ENTERPRISE and NORMAN SAVARY
and WILLIE SMITH and INTERNATIONAL UNION OF OPER-
ATING ENGINEERS, LOCALS 925, 925-A, 925-B, 925-C,
A.F.L. Cases Nos. 10 -CA-1582 and 10 -CA-1624. February 5,
1954
DECISION AND ORDER
On September 24, 1953, Trial Examiner Arthur Leff issued
his Intermediate Report in the above - entitled proceeding,
finding that the Respondents had engaged in and were engaging
in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Repurt attached
hereto. Thereafter , the Respondents filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that noprejudical error was
committed. The rulings are hereby affirmed . The Board has
considered the Intermediate Report, the Respondents ' excep-
tions and brief, and the entire record in the case, and hereby
adopts the findings , conclusions , and recommendations of the
Trial Examiner with the following additions and modifications.
1. In a representation proceeding involving the parties
herein, the present Respondents moved to dismiss the petition
on the grounds , among others , that the Union constituted 4
separate labor organizations , that each of these 4organi ,zations
was required to comply with the filing requirements of Section
9 (f), (g), and ( h), of the Act , and that proof of such compliance
should be introduced in evidence. The Board's Decision and
Direction of Election , in the representation case found no
merit in these contentions . With respect to the contentions that
the Union constituted 4 separate labor organizations, the
Decision stated that:
The record discloses that Local 925 has for apprentices
and for organizing purposes , three administrative sub-
divisions , 925-A, 925-B and 925-C which have no officers,
finances or identity of their own except as they function
through Local 925.
An election was conducted on August 13, 1952 , and on August
25 the Union was certified as the collective - bargaining repre-
sentative of the Respondents ' employees in the unit found
appropriate by the Board . Thereafter , the Respondents and the
t Case No 10- RC-1862, issued July 14, 1952 (not reported in printed volumes of Board
Decisions and Orders)
107 NLRB No. 226.
KIBLER-CAMP PHOSPHATE ENTERPRISE 1069
Union entered into a series of written communications , in none
of which the Respondents questioned the Union's representative
status: On the contrary , a letter from the Respondents ' attorney
to the Union dated March 3, 1953, stated that ". . . you do
continue to represent the bargaining unit." Nevertheless, at
the hearing in the present proceeding , the Respondents again
raised many of the procedural questions decided by the Board
in the representation case, including the contention that the
Union is comprised of 4 separate organizations , that each of
the 4 must be in compliance , and that such compliance must be
established by the Board upon the record . In his Intermediate
Report the Trial Examiner concluded , in regard to this issue,
that : "As the Board found in the representationproceeding, the
certified union is in fact a single labor organization with three
administrative subdivisions which have no separate identity of
their own except as they function through the governing body,
Local 925."
The Respondents have again raised these questions in their
exceptions and brief . In connection with our review of the pres-
ent case, we have reexamined the record in the representation
case. The constitution of the International Union of Operating
Engineers , which was placed in evidence , and the uncontradicted
testimony of an international representative and of the presi-
dent and business manager of Local 925, describe the following
union practices and procedures . A local may establish , within
its geographical jurisdiction , a subdivision A, which covers
apprentices and junior engineers who are in training to acquire
craft status ; a subdivision B, which covers construction
workers; and a subdivision C, which covers industrial workers.
The object of this arrangement is to be able to organize and
represent men from the time they begin working until they
become journeymen . These subdivisions have no officers of
their own ; their members may not hold office in the local; and,
although the subdivision members are under the direction and
control of the officers of the local, they are not permitted to
vote for these officers . They are permitted to attend meetings
of the local , but can vote only on issues that directly concern
them and then only with the permission of the local. The sub-
divisions have no treasury as their members pay all initiation
fees and dues to the local . The initiation fees and dues of sub-
division members are less than those paid by members of the
local . Members of a subdivision may become members of the
local by paying the difference in the initiation fees and dues.
In bargaining negotiations , the representative of the local bar-
gains for members of the local and of the subdivisions.
The Respondents ' employees who joined the Union were
members of either Local 925 or subdivision 925-C. At the
time of the representation hearing, no employees of the
Respondents were members of subdivisions 925-A or 925-B
although both of these subdivisions admit to membership
employees of the Respondents.
337593 0 - 55 - c9
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon our review of the records in both proceedings, we
affirm the Board ' s original determination that the Union is a
labor organization within the meaning of the Act; that it is a
single labor organization with three branches having no inde-
pendent identity but established for administrative purposes
only; and that such administrative subdivisions of a labor
organization are not required to comply with the filing require-
ments of the Act.2 We also find no merit in the Respondents'
contention that the proceeding is invalid because there is no
evidence in the record as to the Union's compliance status.'
We are administratively satisfied that the Union has been in
compliance at all material times.4
2. We agree with the Trial Examiner that the Respondents
discharged Norman Savary because of his leadership inorgan-
izing the Union, not because of dissatisfaction with his work,
in violation of Section 8 (a) (3) and (1) of the Act.
3. Following its certification, the Union, on September 3,
1952, requested a meeting with the Respondents at which to
negotiate a contract, and also requested a list of the Respond-
ents' job classifications . The Respondents' reply referred the
Union to their attorney. On September 22 this attorney sent the
Union the job classifications which it had requested, and sug-
gested the submission of written contract proposals . The Union
submitted a proposed agreement on October 9 and, in its
covering letter , referred to the passage of time since the certi-
fication and urged an early meeting " so we can sit down and
proceed with these negotiations ." The Respondents, in a letter
dated October 30, informed the Union that its proposal was "so
completely out of line" that they would not discuss it "unless
you can assure us that you are willing to accept contract for a
much lesser amount." Although there were further written
communications between the parties, as more fully discussed
in the Intermediate Report, the parties never met. The Respond-
ents continued to refuse to meet with the Union until the wage
rates in its original proposal were modified , while the Union
continued to insist upon a meeting at which they could " sit down
and . . . negotiate a mutual agreement . . ." The Union filed
its charge alleging an unlawful refusal to bargain on November
20, 1952. In March 1953 the Respondents notified the Union that
a wage increase was being put into effect.
The Trial Examiner found, and we agree , that the Respond-
ents' refusal to meet and negotiate with the Union, as well as
their unilateral wage increase , constituted refusals to bargain
in violation of Section 8 (a) (5) and (1) of the Act. We do not
agree, however, with the Trial Examiner's finding that the
2 Grand Central Aircraft Company, 106 NLRB 358.
3N. L. R. B. v. Greensboro Coca Cola Bottling Co., 180 F 2d 840 (C. A 4); N L R B.
v. Wiltse, 187 F. 2d 76 (C A. 5).
4 The Respondents have attacked other determinations made by the Board in the repre-
sentation case, including the adequacy of the Union 's showing of interest and the authority of
the Board to define an appropriate unit wider in scope than the unit described in the petition.
We hereby affirm all the Board 's findings in the representation case decision.
KIBLER-CAMP PHOSPHATE ENTERPRISE 1071
Respondents refused to bargain since September 3, 1952, the
date of the Union's first letter following the certification. We
find, rather, that the refusal began on October 30, 1952, when
the Respondents took the position, to which they thereafter ad-
hered, that they would not meet or confer with the Union until
it receded from its original proposal. Accordingly, we find that
the Respondents, on and after October 30, 1952, refused to
bargain with the certified bargaining representative of their
employees, in violation of Section 8 (a) (5) and (1) of the Act.
4. We find, as did the Trial Examiner, that the Respondents
independently violated Section 8 (a) (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respond-
ents, C. & J. Camp, Inc., Clarence Camp II, Margaret Hocker
Camp Lane, as the Executrix of the Estate of Henry N. Camp,
D. B. Kibler, Jr., D. B. Kibler III, in a Joint Enterprise d/b/a
Kibler-Camp Phosphate Enterprise, Dunnellon, Florida, their
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Union
of Operating Engineers, Local 925, 925-A, 925-B, and 925-C,
A.F.L., as the exclusive bargaining agent in the unit found
appropriate by the Board.
(b) Making any unilateral changes with respect to wages,
hours, or other terms and conditions of employment of
employees in the unit found appropriate by the Board, without
first consulting the Union and, upon request, bargaining with it
concerning any such changes.
(c) Discouraging membership in International Union of Oper-
ating Engineers, Local 925, 925-A, 925-B, and 925-C, A.F.L.,
or any other labor organization of their employees, by discrimi-
nating in regard to their hire or tenure of employment or any
term or condition of employment.
(d) In any manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organi-
zation , to form, join , or assist International Union of Operating
Engineers, Local 925, 925-A, 925-B, and 925-C, A.F.L., or
any other labor organization, to bargain collectively through
representatives of their own choosing , and to engage in con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all
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 employment as authorized in
Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain collectively with International
Union of Operating Engineers, Local 925, 925-A, 925-B, and
925-C, A.F.L., as the exclusive bargaining representative of
their employees in the unit found appropriate by the Board,
and embody any understanding reached in a signed agreement.
(b) Offer to Norman Savary immediate and full reinstatement
to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole in the manner set forth in the section of the
Intermediate Report entitled " The Remedy."
(c) Upon request make available to the Board or its agents,
for examination and copying, all payroll records, social-
security payment records , timecards , personnel records and
reports , and all other records necessary to analyze the amount
of back pay due ender the terms of this Order.
(d) Post at their mine copies of the notice attached hereto
and marked "Appendix A."5 Copies of such notice, to be
furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by an authorized representative of the
Respondents, be posted by the Respondents immediately upon
receipt thereof , in conspicuous places, including all places
where notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondents to insure that said
notices are not altered , defaced , or covered by any other
material.
(e) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondents have taken to comply therewith.
5 In the event that this Order is enforced by a decree of the United States Court of Appeals,
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."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership in International
Union of Operating Engineers , Local 925, 925-A, 925-B,
and 925-C, A.F.L., or any other labor organization, by
discriminating in regard to the hire or'tenure of employ-
ment or any term or condition of employment of any of
our employees.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join the
KIBLER-CAMP PHOSPHATE ENTERPRISE 1073
aforesaid labor organization or any other labor organi-
zation, 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 and all 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 employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL NOT make any unilateral changes with respect
to wages, hours, or other terms and conditions of employ-
ment of employees in the bargaining unit described below,
without first consulting the Union and upon request bar-
gaining with it concerning such changes.
WE WILL offer Norman Savary immediate and full
reinstatement to his former or a substantially similar
position without prejudice to his seniority and other rights
and privileges and make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL bargain collectively upon request with the
above-named Union as the exclusive representative of all
employees in the bargaining unit described below and, if
an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All production and maintenance employees, including
the prospecting crew at our plant, Section 12 mine,
in Citrus County, near Dunnellon, Florida, but exclud-
ing office and clerical employees, guards, and super-
visors as defined in the Act.
All our employees are free to become, remain, or refrain
from becoming or remaining, members of any labor organi-
zation, except as that right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act. We
will not discriminate in regard to the hire or tenure of employ-
ment or any term or condition of employment against any
employee because of membership in or activity on behalf of any
labor organization.
KIBLER-CAMP PHOSPHATE ENTERPRISE,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Charges having been filed against the Respondents above named , a joint enterprise doing
business as Kibler - Camp Phosphate Enterprise , by Norman Savary and Willie Smith in Case
No. 10 - CA-1582, and by International Union of Operating Engineers , Locals 925 , 925-A,
925-B , and 925-C, A.F.L., herein called the Union, in Case No . 10-CA- 1624, and the two
cases having been duly consolidated , the General Counsel issued a complaint alleging that the
Respondent had engaged in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), (3), and ( 5) and Section 2 (6) and (7) of the National Labor Relations Act,
61 Stat. 136, herein called the Act.
More specifically , the complaint alleged that the Respondents: (1) Between April 1 and
August 13, 1952, illegally interrogated employees concerning their union membership,
activities , and desires , and threatened employees with economic reprisals because of their
union membership and activities ; (2) discharged Norman Savary on April 5, 1952 , and Willie
Smith on April 7, 1952, because of their union membership and activities ; and (3) since on or
about August 13, 1952 , refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit.
The Respondents in their duly filed answer denied generally all material allegations of the
complaint imputing to them the commission of unfair labor practices.
Pursuant to notice , a hearing was heldbetweenJune 15 and June 17, 1953, at Ocala , Florida,
before the undersigned , Arthur Leff, the Trial Examiner duly designated by the Chief Trial
Examiner . The General Counsel and the Respondents were represented at the hearing by
counsel , and the charging Union by a representative . Full opportunity to examine and cross-
examine witnesses and to introduce evidence bearing on the issues was afforded all parties.
At the opening of the hearing a motion of the General Counsel was granted, without objection
by the Respondents , to amend the complaint by setting out more accurately the names of the
parties engaged in the joint enterprise doing business as Kibler - Camp Phosphate Enterprise
and the character of that enterprise .I At the conclusion of the hearing a motion by the
Respondents , joined in by the General Counsel , to dismiss the allegations of the complaint with
regard to Willie Smith was granted . 2 At the same time a motion by the General Counsel was
granted to conform the pleadings to the proof as to minor variances . The parties failed to
avail themselves of the opportunity accorded them to argue orally at the end of the hearing.
After the hearing briefs were filed by the General Counsel and the Respondents
Upon the entire record in the case and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
C. & J. Camp, Inc., Clarence Camp II, Margaret Hocker Camp Lane, as the executrix of the
Estate of Henry N Camp, D. B. Kibler, Jr., and D. B:-Kibler III are parties to a certain
operating agreement providing for the operation as a common enterprise of certain properties
owned by them under the name "Kibler-Camp Phosphate Enterprise." The Enterprise main-
tains its principal office and place of business at or near Dunnellon, Florida, where it is
engaged in the mining and distribution df phosphate. During the past year, a representative
period, the Enterprise manufactured and sold finished products valued in excess of $500,000,
of which approximately 50 percent in value was sold and shipped in interstate commerce to
customers located outside the State of Florida. The parties stipulated that the Respondents in
the operation of their said joint enterprise are engaged in commerce within the meaning of the
Act.
i The original complaint had characterized that enterprise as a corporation. The amend-
ment recites the names of the parties respondent as set out in the caption of this proceeding
and differs from the original complaint by naming Margaret Hocker Camp Lane as the
executrix of the Estate of Henry N. Camp.
2 Willie Smith failed to appear as a witness.
KIBLER-CAMP PHOSPHATE ENTERPRISE 1075
U. THE LABOR ORGANIZATION INVOLVED
In its Decision and Direction of Election inCase No. 10-RC-1862, of which official notice is
here taken, the Board found that International Union of Operating Engineers, Local 925, A.F.L.,
has for apprentices and for organizing purposes three administrative subdivisions, Locals
925-A, 925-B, and 925-0, which have no officers, finances, or identity of their own except as
they function through Local 925, their governing body. As Local 925 with its subdivisions exists
for the purpose of collective bargaining with regard to wages, hours, and working conditions,
it is found, in accordance with the Board's prior decision and contrary to the position main-
tamed by the Respondents, that the charging Union is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events prior to election; interference,
restraint,and coercion
The Respondents operate a plant, known as Section 12 Mine, in Citrus County, near Dunnellon,
Florida, for the mining and processing of phosphate. At the times material herein there were
approximately 80 employees at that operation. Until April 1952 no labor organization suc-
ceeded in organizing the employees at that mine, although previous attempts were made.
In the latter part of March 1952, Norman Savary, a draglme operator at the mine, called on
Oather B. Womack, theUnion's president, at Tampa, Florida, advised him that the Respondents'
employees were dissatisfied with their wages and working conditions, and requested his aid in
organizing the employees.•Sava ry received from Womack a batch of union application cards.
Thereafter Savary, assisted principally by employees Raiford Brooks and William Lutrell,
engaged in an intensive campaign to solicit employee signatures on the cards. Within a period
of about 10 days after Savary's initial visit to Womack, signatures were obtained from about
40 employees, with Savary personally obtaining more than 20 of them, mostly at the homes of
employees. Shortly before April 3, 1952. an employee committee headed by Savary called on
Womack and delivered to him the signed cards. On April 3, 1952, Womack wrote the Respond-
ents that the Union had been designated as collective-bargaining representative by a majority
of the Respondents' employees and was, therefore, requesting recognition and a negotiating
meeting.
The record reflects that Savary's organizing activities, although conducted quietly, did not
escape the notice of the Respondent's management. Thus, the Respondents' general super-
intendent, Thomas Felton, although denying on direct examination that prior to Savary's dis -
charge he had any knowledge of Savary's organizing activities, admitted on cross-examination
that he had heard as early as April 2 or 3 that Savary, Brooks, and another employee named
Mott were engaging in union organizing activities. Thus, too, employee Ernest Jones testified
that about April 2 General Foreman Farrell came to the place where he was working and
stated that he had learned that Savary had been to his house to get him to sign a union appli-
cation card. 3 Jones' testimony, although denied by Farrell, is credited.4
The Union's letter demanding recognition was received by the Respondents on the morning
of April 5, 1952. At noon of the same day, which was not a regular payday, General Foreman
Farrell came to Savary's place of work, handed him a final paycheck, and told him the
Respondents had no further need for his services. When Savary asked why he was being fired,
Farrell replied that it was for "unsatisfactory services dating way back."
The issue of whether Savary was in fact discharged for his union activities, as contended
by the General Counsel, or for unsatisfactory services, as contended by the Respondents, was
the one principally litigated at the hearing. That issue will not be resolved at this point, but
will be deferred for more detailed discussion in a later section of this report. In the meantime
we shall proceed with a chronological account of events which, while having a bearing on the
3Although Jones had in fact previously signed a union application card at Savary's solici-
tation, he told Farrell at the time that he had not been solicited by Savary.
4Jones, who is still employed by the Respondents, impressed me by his demeanor and
overall testimony as a credible witness. No attempt was made by the Respondents to shake
Jones' testimony on this point.
107 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory discharge issue, relate also to the allegations of the complaint regarding the
Respondents ' alleged independent acts of interference , restraint , and coercion and refusal to
bargain.
Employee Raiford Brooks who, next to Savary, was most active in soliciting union designa-
tions from employees , testified as follows : On the afternoonof Savary's discharge , after other
employees had quit work , Brooks, who was then housed in a trailer near the Respondents'
premises , remained at the plant to thread some pipe of his own ui accordance with permission
previously granted . At about 5 p. m. he was approached by Farrell who said to him , "Brooks,
take it kind of easy in what you're doing . Kind of watch your step ." When Brooks asked if any-
thing was wrong with his work , Farrell replied , "No, nothing wrong with your work or any-
thing . That 's satisfactory , but you know what I'm talking about. Just take it easy ." At that
time, Brooks was uncertain of what Farrell was talking about, but later that night--a Saturday
--Brooks learned in town of Savary's discharge . On the following morning, while Brooks was
at the shop threading some more pipe , Farrell came in. Brooks told Farrell that he had seen
Savary in town the night before and now understood what Farrell had been saying to him the
previous evening. When he mentioned to Farrell that Savary had stated he had been fired
because of the Union , Farrell neither directly affirmed nor denied it, but simply remarked,
"That's just guess work ." Brooks asked what, then , Farrell meant by his remarks the night
before , adding that if there was anything wrong he felt he should know about it. Farrell's only
response was to remark cyptically , "No, that's all right , just take it easy and go slow on what
you're doing."
Farrell denied making the statements attributed to him. According to Farrell , he simply
told Brooks on Saturday to "be careful of that threading machine and don't mess it up." His
version of their Sunday talk was that Brooks had brought up the question of the reason for
Savary's discharge , that he had replied , "That's Company business ", and when Brooks had
persisted , had stated that it was because Savary "wasn 't giving satisfaction ." Farrell's
testimony was unconvincing . Brooks' testimony was marked by substantial detail and was left
unshaken by cross-examination . He impressed me generally as a truthful witness. I credit his
testimony over that of Farrell . On the basis of Brooks ' credited testimony , and considering
the timing and context in which Farrell's remarks were made , I am persuaded and find that
Farrell 's admonition to Brooks , to watch his step and take it easy in what he was doing, was
designed as a thinly veiled threat to Brooks that he might endanger his job security if he per-
sisted in his union activities , and that itwas so understood by Brooks at least after he learned
of Savary 's discharge , which Farrell would neither admit nor deny was for union activities.
Employee Odus Pridgen testified that as he was leaving work about 3 minutes to 6 on the
Tuesday after Savary's discharge , he ran into Farrellwho was sitting outside in his truck and
was drawn into a conversation with him. In the course of their conversation, Farrell told
Pridgen that "he had fired one white man about the Union " and "if he could ever get the evi-
dence on another white man in welding he would fire him." Pridgen , who is still employed by
the Respondents , impressed me as telling the truth , and Icredit his testimony over the denial
of Farrell, much of whose overall testimony I found unreliable 5
Shortly after making its bargaining demand , theUnion instituted a representation proceeding
before the Board , and, following the usual proceedings, an election was directed to be held on
August 13 , 1952. Credited testimony in the record reflects that during the preelection period,
Farrell on various occasions interrogated employees concerning their membership in the
Union or how they intended to vote . Thus, Ernest Jones testified , and it is found , that about 3
months after Savary's discharge , Farrell asked him whether he had joined the Union. When
Jones replied that he had not, Farrell said , "That 's right. I wouldn't mess with it." Raiford
5 Although Pridgen at one point fixed the date of the incident in May, his testimony through-
out was definite that it occurred about the Tuesday following Savary's discharge . It appears
that Pridgen was under the mistaken impression that the date of Pridgen 's discharge was
May 5 rather than April 5. I do not consider Pridgen's error as to the month as sufficient to
impair his credibility . The Respondents further urge that Pridgen is not to be believed because
their records show that at the time of the incident Pridgen was employed on a night shift.
This, they say, demolishes his testimony that he ran into Farrell after checking out at
6 o'clock I cannot agree. I find nothing in Pridgen's testimony to support the Respondents'
contention that Pridgen claimed to have left the job at about 6 o'clock in the afternoon; his
testimony is just as susceptible to the interpretation that he was referring to 6 o'clock in
the morning. Indeed , the latter is more likely, because the record shows that those working
at night worked a 12-hour shift from 6 p m, to 6 a m ., while those working in the day-
time worked a 10-hour shift from 7 a. m, to 5 p m.
KIBLER-CAMP PHOSPHATE ENTERPRISE 1077
Brooks testified , and it is found, that a few days before the election , Farrell asked him how he
felt about the Union and how he was going to vote. When Brooks answered that he did not know,
Farrell stated that he did not think the men needed a union as they had been getting along well
without one , and questioned whether the Union could help them any. Farrell added, however,
that it was "a free country " and "a fellow can vote the way he wants to, and that's his
privilege ." Employee W. W. Martin testified , and it is found , that Farrell questioned him about
the Union on two occasions , asking him on one occasion what he thought about the Union
and on another how he was going to vote in the election.6
On the basis of the facts thus far found , certain conclusions can now be reached with regard
to the complaint 's allegations of interference , restraint , and coercion that are independent of
the alleged refusal to bargain and discriminatory discharge of Savary , reserved for separate
discussion below. It is concluded and found that the allegation that the Respondents illegally
interrogated employees concerning their union membership , activities , and desires is sub-
stantially supported by (a) Farrell 's remarks to Jones about Savary's visit to his home,
remarks which it is found were designed to pry from Jones a disclosure of Savary 's activities
and his own reaction to the Union ' s campaign , and (b) Farrell's direct interrogation of em-
ployees Ernest Jones, Raiford Brooks, and W. W. Martin during the preelection period, as re-
ported above . It is concluded and found that the allegation that the Respondents threatened
employees with economic reprisal because of union membership and activities is substantially
supported by Farrell's implied threat to Brooks shortly after Savary's discharge , that he
might endanger his job security if he persisted in union activities , and by Farrell ' s state-
ments to Pridgen that he had already fired one white man because of the Union and would fire
another if he could get the evidence on him . By reason of such conduct engaged in by Farrell,
for which responsibility is imputable to the Respondents , it is found the Respondents inter-
fered with , restrained , and coerced employees in the exercise of their rights guaranteed by
Section 7 of the Act , and thereby violated Section 8 (a) (1) of the Act?
B. The refusal to bargain
On July 14 , 1952, the Board issued a Decision and Direction of Election in Case No.
10-RC-1862 , finding , among other things , that all production and maintenance employees,
including the prospecting crew at the Respondents ' plant , Section 12 mine in Citrus County,
near Dunnellon , Florida, but excluding office and clerical employees , guards , and super-
visors as defined in the Act , constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act. Thereafter , on August 13, 1952, pursuant
to the Direction of Election , an election by secret ballot was conducted under the supervision
of the Regional Director for the Tenth Region. The tally of ballots showed that 48 employees
voted in favor of representation by the Union and 34 against . On August 25, 1952, the Regional
Director , on behalf of the Board , issued a certification of representatives certifying the Union
as the exclusive representative of all the employees within the aforesaid unit for the purposes
of collective bargaining with respect to rates of pay, wages , hours of employment , and other
conditions of employment.
On September 3, 1952 , the Union wrote the Respondents requesting a meeting date for con-
tract negotiations , and also asking for a list of the Respondents ' payroll classifications. In
reply , the Respondent referred the Union to their attorney , E. Snow Martin . After some delay,
Mr. Martin , under date of September 22, 1952 , submitted to the Union a list of job classifi-
6The testimony of Ernest Jones , Brooks, and W W Martin was denied by Farrell, but
his denials are not credited.
7 The record contains testimony of other incidents relating to the independent 8 (a) (1)
allegations , but such testimony has not been adverted to because it is not relied upon to
support factual findings. Thus , James Key , a former employee, testified that he was ques-
tioned by Farrell concerning the Union on two occasions and that on one of them Farrell
threatened that the plant would shut down if the Union came in. However , certain other aspects
of Key's testimony as well as his demeanor while testifying have led me to doubt his veracity
and I therefore give his testimony no credence Another employee , Willie Russell , also testi-
fied to an act of interrogation and a coercive statement , both by Farrell . While Russell did not
impress me as dishonest , I thoughthimconfused and for the latter reason am reluctant to give
faith and credit to his testimony . For similar reasons, I do not rely on testimony concerning
alleged interrogation given by another witness, Willie Jones. Testimony by another witness,
A J Martin , of interrogation by Farrell is rejected because Martin ' s testimony read in con-
text seeme l to me implausible at least in part
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cations , and suggested that before a meeting was arranged the Union submit to him its con-
tract proposals . The Union complied with Mr. Martin's suggestion on October 9, 1952, for-
warding to him a copy of the proposed agreement it stated it wished to negotiate . At the same
time the Union directed Mr. Martin 's attention to the substantial period of time that had
elapsed since the Union 's certification and asked for an early meeting to proceed with the
negotiations . The Respondents delayed response for a period of some 20 days . Then, under
date of October 30, 1952 , Mr. Martin wrote the Union , stating that the Union 's proposal was
"so completely out of line that the employer feels it unnecessary to discuss it unless you can
assure us that you are willing to accept contract for a much lesser amount ." The Union replied
the following day, taking issue with the claim that its proposal was out of line when compared
to other phosphate mines in the area , and adding:
The least you could do if you have any intentions of negotiating in good faith as you are
supposed to do would be to have set a date for a meeting where we can sit down and
negotiate this agreement . You and your company up to this time have not given us an
opportunity to sit down and discuss this in any manner.
After more than two months elapsed time and several communications and additional
telephone conversations , you have failed to meet with Union representatives or indicate
that you would meet with the Union representatives to negotiate a mutual agreement
covering the employees of your plant.
Receiving no reply to its communication , the Union again wrote the Respondents ' attorney
on November 8, once more asking for a meeting date so that the parties could "sit down and
start these negotiations ." At that time the Union stated that unless it received an affirmative
reply it would "assume that you and your company are refusing to negotiate ." Mr. Snow
replied under date of November 10. In his letter, Mr. Snow denied that there had been a refusal
"to sit down and discuss . . . the possiblityofarrivingat a contract ," but then went on to add:
We have stated and do now state that setting a date for such a discussion or having such
a discussion would be absolutely useless unless you are willing to state in advance that
your unions are willing to arrive at a contract at a much lesser cost to the company than
the contract proposed by you . This contract and the demands made by it are so far out of
line that negotiations have failed before they are begun unless you change entirely your
position.
There were no further communications between the Union and the Respondents with regard
to a negotiating meeting . The Union did not advise the Company that it was prepared in advance
of a negotiating meeting to recede from its demands , and the Respondents remained steadfast
in their last position that this was a prerequisite to its willingness to meet . On November 20
the Union filed its charge in the instant proceeding , alleging that the Respondents were re-
fusing to bargain.
On March 3 , 1953, Mr. Snow , on behalf of the Respondents, wrote the Union that it was putting
into effect as of the preceding day a 5-cent per hour increase , and on the following day cor-
rected his letter by stating the increase would become effective on March 6. At no time did the
Respondents offer to consult or negotiate with the Union concerning the increase. The increase
was put into effect unilaterally.
On the basis of the foregoing facts , I think it clear , and I find, that, by failing and refusing
since September 3, 1952 , to comply with the Union 's reiterated requests for a negotiating
meeting , and by unilaterally puttingintoeffect a wage increase on March 6, 1953 , the Respond-
ents violated Section 8 (a) (5) of the Act , and by such conduct also interfered with , restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.
There is no merit to the Respondents ' contention that they were under no obligation "to
recognize as representatives of [their] employees four separate unions ." That same position
in substance was urged by the Respondents in the representation proceeding and was ruled
upon by the Board adversely to them . As the Board found in the representation proceeding,
the certified union is in fact a single labor organization with three administrative subdivisions
which have no separate identity of their own except as they function through the governing
body , Local 925.
There is likewise no merit to the Respondents ' further contention that any meeting with the
Union would have been useless and unavailing because of what it claims to have been a refusal
to bargain on the part of the Union, arising from the Union 's failure to indicate in advance of
a negotiating meeting a willingness to recede from the terms of its written proposals that the
KIBLER-CAMP PHOSPHATE ENTERPRISE 1079
Respondents had already advised it they could not meet. By explicit statutory definition, per-
formance by the Respondents of their obligation to barga in required them "to meet ... and
confe in good faith with respect to wages , hours, and other terms and conditions of employ-
ment, or the negotiation of an agreement . . . " (Section 8 (d) of the Act). The Respondents
could not in advance of a meeting, and as a condition to their own agreement to meet, require
the Union to consent to the surrender or modification of any of its demands , and the Union's
unwillingness to do so may not be viewed as a refusal to bargain on its part. At no time did
the Union flatly assert that under no conditions would it consider any modification of its
demands if a meeting were held; on the contrary , the tenor of its correspondence was that its
written demands were open to negotiation . Under the law the Respondents were not required
to accept any of the Union's demands itconsidered unreasonable , but at the same time it could
not decline to meet and confer with the Union regarding them; nor could it insist that a con-
ference be withheld until the Union 's demands were brought more closely in line with its own
thinking . An opportunity for the interchange of ideas, communication of facts peculiarly within
the knowledge of either party , personal persuasion , and occasion to trade or modify demands
in accordance with the total situation developed ata bargaining conference is of the essence of
the bargaining process . Until such an opportunity has been afforded and the respective posi-
tions of the parties fully tested , it cannot be said that further negotiation would be useless or
unavailing . Moreover , on the entire record of this case , I do not believe that the Respondents'
refusal to meet with the Union was motivated primarily by a belief that the results of such a
meeting would be fruitless because of the Union 's unwillingness to yield ; rather I am persuaded
that the Respondents ' more basic objective was to avoid any contractual or bargaining relation-
ship with the Union.
C. The discriminatory discharge of Norman Savary
As found above , Norman Savary , whowasprincipallyresponsible for organizing the Respond-
ents' employees into the Union , was discharged on the morning of April 5, 1952 --several hours
after the receipt by the Respondents of the Union 's bargaining demand. According to the
Respondents , Savary 's discharge was recommended at about 9 a. m. that morning by General
Foreman N . T. Farrell to General Superintendent Thomas Felton, but not finally decided upon
by the latter until shortly before noon. On the record evidence, I am satisfied that the Respond-
ents were aware of Savary 's organizing role at the time of his discharge . Felton conceded that
before coming to the plant that morning he had received at the Respondents ' post office box,
and read, the letter containing the Union 's bargaining demand. Although Felton on direct
examination sought to leave the impression that he was ignorant at the time of Savary's
organizing activities , his cross -examination clearly reveals that in fact he had such knowledge.
In attempting to explain why he did not give Farrell an immediate answer to the discharge
recommendation which Farrell says he made about 9 a. m. Felton testified:
Well, I had heard by word of mouth that Mr. Savary and Mr. Brooks and Mr. Mott had
been talking to some of the men about organizing a union, and when I got this [Union's
bargaining request), I thought now, if that 's so, why , the coincidence of this receiving the
letter and discharging Savary might be probably --get a howl about it, see?
Felton testified further that before committing himself finally on the question of Savary's
discharge he communicated by telephone with D . B. Kibler , Jr., one of the plant owners, and
obtained his specific authorization for the discharge action . Felton conceded but that for the
letter he would not have consulted Kibler about Savary 's discharge:
Because I have a right to do what I think should be done about a thing like that. As I say,
this coincidence , the two things, I did consult Mr. Kibler about it.
Before his discharge , Savary had been employed by the Respondents for over 12 years,
during his last 6 years as a dragline operator . In that capacity , Savary's particular job was
to dig phosphate out of the mine pit and load it into pit cars which would then be carried along
a track by diesel engines to the plantproper , located at that time a distance of some 1 ,500 feet
from the place where the mining was being conducted . When the cars neared the plant, they
would be attached to cables and powered up a ramp terminating at a dump skid from where
their contents would be released into a hopper. From that point the mined matter would be
carried over conveyor belts known as grizzlies running from the hopper to the crushers, along
which employees were stationed to separate foreign matter and other undesirable elements
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the usable phosphate before it was carried through the remainder of the plant for addi-
tional processing . During the latter part of Savary 's employment digging was being conducted
at a location which had been previously mined , and which in large part was submerged under
water . As digging at that location was largely blind , it was not unusual to pick up foreign
matter such as boulders , and, on occasions , tree stumps , old railroad ties , and rails . Savary
was expected to cast any foreign matter of substantial bulk to one side if he was in a position
to see it before loading it into the car . This was not always possible , however, and it was not
uncommon for foreign matter to be loaded into the cars . When that was done , Savary, if he
knew of it , was expected to signal the ground crew of its presence so that arrangements could
be made for its removal . Frequently , the matter could be removed only by dynamiting , either
at the pit or, if the matter was not too large to pass through the car chute into the hopper, at
the hopper or at the grizzlies . Particularly when digging was conducted in boulder rock or
under water , the dynamiting of foreign matter was a common occurrence . Although on many
days no dynamiting would be required , on others the need for it might arise as frequently as
10 or 15 times daily . Dynamiting at the hopper or its environs would require a shutdown of
other operations for an average of 10 to 15 minutes each time it was necessary to dynamite.
The only reason given Savary for his discharge was that his work had been unsatisfactory
over a long period of time . That is the basis on which the Respondents now defend the dis-
charge, but in extension of their defense , they also add an alleged specific incident of mis-
conduct, claimed to have occured shortly before Savary 's discharge , but never explicitly
mentioned to Savary as a reason for his release . It is claimed that on the morning of his dis-
charge, Savary caused a 45 -minute delay in plant operations as a result of his improper con-
duct the preceding afternoon in loading an extra large tree stump into a pit car and failing to
heed Foreman Alligood's request for its removal.
Farrell testified that while Savary 's work on the dragline operation was satisfactory at the
beginning , it had turned poor about the fall of 1950 when the Respondents began remining old
pits, and that thereafter , in the last year and a half of his employment , Savary's work had
become careless , and his attitude disobedient and resentful . According to Farrell , he made
up his own mind to fire Savary long before his recommendation to Felton , but "kept it to my-
self entirely for a period of time ." With a view toward replacing Savary , Farrell 's testimony
continued , he hired another operator , named Limbaugh , in May 1951, and trained him to
operate Savary 's dragline . He would have fired Savary sooner, but his plan to do so was
interfered with by Limbaugh 's absence from work for an appendicitis operation between March
15 and Apri15 , 1952. FollowingLimbaugh 's return, he decided to speak to Felton about Savary's
discharge in accordance with the decision he had earlier arrived at in his own mind. The
stump incident , he testified , "didn 't particularly have any more bearing than what I already had
in my own mind to mention to Mr . Felton."
Felton's account of the events leading to the discharge decision in certain respects coin-
cides but in others conflicts with that of Farrell . Felton , like Farrell , testified , without sup-
porting detail , however , that Savary 's work and attitude suddenly turned sour about the fall of
1950. But while Farrell 's testimony indicates that hewithheld speaking to Felton about getting
rid of Savary until the morning of Savary 's discharge , Felton's is to the contrary . According
to Felton , Farrell constantly broached the subject to him about once a month since the fall of
1950 . At first, according to Felton , he urged patience on Farrell both because Savary had a
family to support and because the Respondents had no one to put in his place . When Limbaugh
came along in May 1951 , Felton testified , it was decided to put him on and train him so that
he might replace Savary if Savary did not get straightened out. About the first of March 1952,
accordingto Felton--whose testimony in that respect is now , however , supported by Farrell's
--a definite understanding was reached between him and Farrell to let Savary go and to put
Limbaugh in his place at the end of that month . Because of Limbaugh 's intervening illness,
however, that decision could not be carried out on the date originally planned . When, accord-
ing to Felton , Farrell came to his office on April 5 and told him that Limbaugh was back on
the job and that he was ready to do something now about Savary , Felton , after first consulting
with Kibler about the "coincidence of this thing , discharging Mr. Savary and receiving this
[union] letter ," instructed his bookkeeper to prepare Savary 's final paycheck . As for the
stump incident , Felton on cross-examination testified that this was not a controlling factor
in the discharge decision , which, he stated , had actually been made before that time. In that
respect, however, Felton altered his position somewhat on redirect , testifying in response
to a leading question that it was the "straw that broke the camel 's back."
Considerable evidence was adduced on the question of whether Savary was or was not a
satisfactory worker . Although Savary testified on direct examination that there were no com-
plaints by management about his work during the period of his employment , his own cross-
KIBLER-CAMP PHOSPHATE ENTERPRISE 1081
examination as well as other credible evidence satisfies me that that is not so . The record
shows that Farrell did on occasions criticize him for things he had done or failed to do.
More specifically , it appears that on one occasion , about 6 months or more before his dis-
charge, Savary was taken to task by Farrell for bending a track rail with the dipper of his
dragline ; that on another occasion , about 30 or 40 days before his discharge , Farrell repri-
manded Savary for sending a large boulder to the plant , and that on several occasions Farrell
criticized Savary for not properly filling the pit cars . In addition , it appears that Farrell,
who directly supervised Savary's digging operations , frequently "raised sand " with Savary
about the positions from whichSavary chose todig, and at times ordered Savary to go back and
dig out phosphate he had missed. According to Levi Presley, oiler on Savary's dragline, and
one of the Respondents' principal witnesses on this phase of the case, whose testimony I find
to be generally credible, the latter criticisms, upon which the Respondents mainly rely to
establish the unsatisfactory character of Savary's work performance, were not confined to
Savary's last year and a half of employment, but extended throughout the 6-year period of his
job as a dragline operator . In appraisiiig the seriousness of the digging criticisms , it is to be
borne in mind that it was part of Farrell's supervisory duties to advise Savary where to dig
and to inform him if he were found digging in the wrong place . It is also to be borne in mind
that Farrell was an outspoken supervisor who, as he stated , had no friends while on the job,
and who, as Presley's testimony reflects, would vigorously express fault not only with
Savary but with other employees as well. Presley while testifying as to the frequency with
which Farrell "raised sand" with Savary, also testified that Farrell would not "raise sand"
with Savary more often then he did with anybody else. There is some evidence that Savary
at times expressed his resentment at criticism by Farrell when he considered such criticism
unjustified. But the evidence I find credible fails to support a finding that Savary, although
perhaps at times inefficient in the execution of Farrell 's instructions , ever wilfully flouted
management 's authority in his work or attitude.
It is worthy of note that throughout the protracted period in which Savary's services are
claimed to have been unsatisfactory, Farrell at no time gave Savary any indication, let alone
warning , that he was bordering on discharge . Indeed , there is testimony from Farrell's own
lips tending to belie his present assertion that long before Savary's union activities began,
he had been anxious to get rid of Savary. Thus, Farrell testified that during Savary's last
year and a half of employment, there had been a number of occasions when Savary had
threatened to quit because of criticism of his work, but each time except the last--which
Farrell says occurred a few days before Savary's discharge (that is, after Savary's organi-
zational activities began)--Farrell had dissuaded Savary from doing so, pointing out to him
that he had a family to protect and should think of them before throwing up his job.
The assertions made by Farrell and Felton that they would have fired Savary sooner but
for Limbaugh's illness, and their effort to account for the timing of the discharge principally
on the basis of Limbaugh's return to work on the morning of the discharge, impress me as
implausible, as does much of their other testimony relating to Limbaugh. For example,
Farrell sought to leave the impression that Limbaugh was hired specifically to be trained as
a replacement for Savary. But other record evidence shows that Limbaugh was needed and
was actually hired as a general relief operator, not only for Savary but for 2 other operating
engineers who handled different equipment , and was trained for all 3 jobs . 8 If, as Farrell
testified, it had been his thought all along to replace Savary as soon as Limbaugh could be
trained for his job, and if Savary's work was as unsatisfactory as Farrell would have it
supposed, it is difficult to understand why Farrell took no action during the 10-month period
that intervened between Limbaugh's employment in lay 1951 and his illness in March 1952.
Certainly it cannot be explained on the theory that a training period of that duration was
required, for, if Farrell's testimony is to be believed, Limbaugh learned quickly and became
a satisfactory operator on all 3 of the plant's draglines within a few months after he was
hired. 9 Felton's testimony that a definite decision had been reached at the beginning of
March to replace Savary at that month's end , but its execution delayed by Limbaugh's
intervening 3 weeks ' absence , was, as noted , unsupported by Farrell , and impressed me as
8It appears that even after Savary ' s discharge the Respondents employed men in the capa-
city of relief operators though there was admittedly no thought then of discharging any of their
regular operating engineers.
9 Farrell ' s testimony in that respect , however , is to be contrasted with that of Pit Foreman
Alligood who testified that Limbaugh had been allowed to operate Savary ' s dragline only
occasionally , and had operated mainly the other two machines . According to Savary, it was
Farrell who usually acted as his relief.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrived. If, as Felton insists, Limbaugh's return on April 5 was the primary cause for the
timing of the discharge that day and simply marked the execution of a definite decision
earlier reached, no reason appears why Savary was not released the day before, a payday,
when he received his pay for the workweek that had just ended. At that time, the record shows,
Farrell already knew definitely that Limbaugh would report for work on April 5, yet made no
mention to Savary that it was planned to terminate him next day, nor, so far as appears, to
Limbaugh that it was planned to place him on Savary's job.
What, then, of the stump incident which Felton testified variously had no controlling effect
on the discharge decision and was the immediate cause for the discharge as "the straw that
broke the camel's back"? The first thing to determine is what, if anything, happened. On that
there is a mass of contradictory evidence.
According to Farrell, on the morning of the discharge, there was a 45-minute delay in
operations caused by the necessity of dynamiting an extra large tree stump that was too large
to pass through the car chute for dumping into the hopper. Farrell testified that sometime
before noon that morning he learned from Alligood, the foreman in charge of the ground crew
at the pit, whQ was not, however, Savary's supervisor, that the stump had come up to the
hopper because Savary had failed to heed Alligood's request to take it out. Although, according
to Farrell, this "kind of aggravated" him, he admitted that he never spoke to Savary about
that incident.
The General Counsel disputes that any incident suchas that testified to by Farrell occurred
on the morning of Savary's discharge. Savary and four other employee witnesses called by the
General Counsel denied that the plant was shut down for an appreciable or unusual length of
time that morning on account of dynamiting. Employee Daniel Tillman, who was identified by
the Respondents' witness, Cole Tribble, as the one who did the dynamiting, testified that no
stump was dynamited at the hopper on the morning of Savary's discharge, although a large
stump had been dynamited at the hopper abouta month and half before, and another some time
after Savary was discharged. Nathaniel Daniel, whousually worked with Tillman on dynamiting
jobs, likewise testified that the last big stump he could recall being dynamited at the hopper
prior to Savary's discharge came through about a month and a half before.
On the other hand, two employee witnesses called by the Respondents, Cole Tribble and
Nathan McMahon, the car puller and assistant car puller at the ramp, testified with convincing
detail about an exceptionally large tree stump that had come up the ramp to the hopper on
Saturday morning, one that was too large to pass through the car chute at the dump skid, and
that required dynamiting at that point, a process which consumed some 20 or 30 minutes.10
Both these witnesses, however, while positive that the incident occurred on a Saturday,
admitted uncertainty on cross-examination as to whether it occurred on the Saturday Savary
was discharged. "All I know," testified McMahon, "is that it happened on a Saturday morn-
ing." Another witness for the Respondents, Plant Foreman J. F. Hedick, testified that about
8 a. m. on the morning of Savary's discharge, "maybe he [Savary] sent a large stump up
there that we had to dynamite, chop out with an axe, finish chopping it out." On cross -exami-
nation, Hedick also indicated some uncertainty as to whether this occurred on the particular
Saturday on which Savary was discharged. He testified that he "thought" it was the same
Saturday and that he was "almost positive" it was that Saturday, but his testimony in that
respect, and his demeanor in giving it, appeared to me to lack conviction.
Foreman Alligood, called by the Respondents, testified that about 4 p. m. on the Friday
before Savary's discharge, Savary dumped an extra large stump into the pit car and attempted
to remove it with the dragline dipper, but was unsuccessful in his attempt Alligood, according
to his testimony, then told Arthur Cotteswell, a member of the pit crew, to place a sling
about the stump so that it might be lifted out with the dragline. Savary, testified Alligood, then
stated, "No, let it go to the plant for wood." 11 Although Alligood's testimony is contradictory
on this as on other points, his cross-examination makes clear that he neither spoke to nor
gave any instruction to Savary at that time, but addressed his remarks to members of the
ground crew under his jurisdiction. Alligood's testimony does not indicate that he made any
independent effort to arrange for the removal of the stump he says he saw Savary load in the
car that day, though the record reflects that it is normally the duty of the ground crew at the
pit to remove, by dynamiting if necessary, any large foreign objects dumped into the cars.
In one very important respect, Alligood's testimony is inconsistent with Farrell's. According
to Alligood, the pit car containing the stump went up to the hopper that same day and not, as
10 According to Tribble this occurred at about 10 a. in.
u It appears that on the occasions when tree stumps were carried to the plant, they were
used there for firewood.
KIBLER-CAMP PHOSPHATE ENTERPRISE 1083
Farrell testified , on the following morning. 12 Moreover , according to Alligood , he told
Farrell that same afternoon about the stump incident , after Farrell asked him if he had seen
Savary place it in the car. In that respect , too, there is a clear conflict between his testimony
and that of Farrell , for Farrell would have it believed that he first learned about the stump
on the morning of Savary 's discharge after he had inquired as to the cause of the 45-minute
delay which he claims occurred that morning.
Savary admitted that on occasions he had loaded stumps into cars that had gone up to the
plant, and that he had loaded a medium or fairly large-sized stump into a car not long before
his discharge . But he testified that he had last loaded a stump about 2 or 3 days before his
discharge , probably on Thursday . ii Savary explained that the stump had been removed from
under water ; that it was at the bottom of his dipper; that he did not observe it until after it
was released from the dipper; that after it was in the car it was not possible to remove the
stump with the dipper ; and that in any event the stump he saw in the car that day was not so
large as to require dynamiting . Savary disclaimed any recollection of anything having been
said on that occasion by Alligood or anyone else about placing a sling about the stump. And
he disclaimed any recollection of stating that he was going to send it up to the plant for wood,
although he conceded he might have said that on another occasion in connection with some
other stump. It was Savary's recollection that at the time he picked up the stump in question,
Alligood was supervising work of trackmen at another part of the pit and was not then in the
immediate vicinity of the dragline.
The Respondents did not call Cotteswell or other members of the ground crew claimed to
have been present at the time , who, if Alligood 's version is correct , would have been in a
position to corroborate his testimony . They did call, primarily to testify on another phase of
the case , Levi Presley , Savary's oiler . Presley's testimony cannot be read as fully supporting
the version of either Savary or Alligood,but , if anything , it appears to fall more nearly in line
with that of Savary . Presley testified that on the afternoon before Savary was discharged he
heard Savary blow a warning whistle , normally used as a signal to the track crew of the
presence of foreign matter inthecar . In response to Presley 's inquiry as to the reason for the
whistle , Savary told him that he had just loaded in the car a small stump which he wanted
removed, but that apparently the track crew had not heard his signal ; and that it was just as
well as Farrell had told him it could go in for wood . Presley's testimony makes no mention
of Alligood having been present at the time. His testimony also is in opposition to Farrell's
assertion that the stump loaded in the car on Friday was left in the pit that day and did not go
to the plant until the following morning causing a 45-minute delay in operations.
On the basis of my appraisal of the content and quality of all the testimony relating to the
stump incident , and from my observation of the witnesses giving it, I am satisfied that Savary
did dump into a pit car on Friday afternoon a sizeable stump which went up to the plant that
afternoon . I find insufficient basis for finding that in doing so , he refused to comply with a
specific instruction given him at the time by a supervisor . As for the incident described by
Alligood, I am left unsatisfied that it occurred on that particular occasion , although I believe
it may have on another . In general , I credit the testimony of the Respondents ' witness,
Presley . I believe that at sometime during Savary 's employment it was necessary to dynamite
an extra large tree stump as testified to by the Respondents ' witnesses , Tribble and McMahon,
but do not believe that it involved the tree stump loaded by Savary on Friday , or that the
incident referred to in their testimony occurred on the particular Saturday of Savary's dis-
charge . I am satisfied that the tree stump loaded by Savary on Friday went to the plant the
same day withoutcausing any extraordinary interruption in operations . I do not credit Farrell's
testimony that on the particular morning of Savary 's discharge , the plant was closed down for
45 minutes because of the alleged stump incident . Apart from other considerations already
indicated , I find it difficult to believe that, if Savary had in fact caused such an interruption,
Farrell, who , as the record shows , ordinarily showed little hesitation in "raising sand" with
employees he thought at fault, would have restrained himself to silence , and would have
refrained from so much as mentioning that incident to Savary , if not sooner, then at least at
the time he informed Savary of his discharge.
Though , as found , Savary did send up a stump on Friday , it appears that it was not unusual
for such foreign matter as tree stumps , old railway ties , and similar items to find their way
12Normally , it takes about 15 minutes for a car after it is loaded to reach the dump skid at
the hopper . According to Farrell 's version , not corroborated by any other witness, the car
in which the stamp was loaded had been left in the pit on Friday afternoon because of trouble
with a fuse "a few minutes late Friday afternoon."
isOther testimony of Savary reflects , however, that this might have occurred on Friday.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the pit to the plant, there to be removed, and on this record I do not believe that the
Respondents would have considered this in itself so serious a matter as to warrant discharge.
Nor, for reasons more fully stated below, do I believe that this was "the straw that broke the
camel's back."
As the First Circuit Court of Appeals recently stated in N. L. R. B. v. Whiten Macme Works,
204 F. 2d 883:
In order to supply a basis for inferring discrimination , it is necessary to show that one
reason for the discharge is that the employee was engaging in protected activity . It need
not be the only reason , but it is sufficient if it is a substantial or motivating reason,
despite the fact that other reasons may exist.[Citing cases.] Although the discharge of an
inefficient or insubordinate union member or organizer is lawful , it may become dis-
criminatory if other circumstances reasonably indicate that the union activity weighted
more heavily in the decision to fire him than did dissatisfaction with his performance.
In this case , to sum up, it appears that Savary was discharged allegedly for unsatisfactory
work performance over a protracted period , after more than 12 years of service with the
Respondents and 6 years in his last job. According to the Respondents, Savary had been an
unsatisfactory employee for at least a year and a half before his discharge. Nevertheless,
they had tolerated his shortcomings throughout that period, only to find his services no longer
tolerable on the very morning they received a recognition demand from the Union which, as
they recently learned , Savary had been largely instrumental in promoting among plant
employees . The Respondents ' attempt to relate the particular timing of the discharge to
Limbaugh's return to work that morning has been found unconvincing . The Respondents'
somewhat inconsistent position , that the discharge was precipitated that day by a 45 -minute
delay in plant operations through the fault of Savary , has been found unsupported by credible
evidence . Further , Felton's departure from customary practice to discuss Savary 's discharge
with one of theplantowners only becauseSavary was known to be active in union organizational
work, while not in itself establishing that the discharge was a consequence of Savary 's union
activity , at least shows that Savary's union role was not wholly ignored in the deliberations
leading to the ultimate discharge decision.
If that were all in the record , there might be merit to the Respondents ' argument that the
coincidence in timing between the arrival of the union notice and the discharge of the Union's
leading advocate creates only a suspicion but does not reasonably support an inference that
Savary was discharged for union activity . Were there not more, perhaps it could be said that
there is no more justification for finding that the relationship between the union activity and
the discharge was one of consequence , not coincidence , as the General Counsel urges, than
there is for finding that extended dissatisfaction withSavary 's work finally reached a breaking
point, as the Respondents insist . But there are other circumstances present here, which,
when coupled with the unpersuasiveness ofthe Respondents ' explanations for effecting Savary's
discharge at that particular time, convince me that , whatever the Respondents ' opinion of
Savary's work performance may have been, "the union activity weighed more heavily in the
decision to fire him than did dissatisfaction withhis performance ," and that it was that factor
rather than any other that constituted the fracturing straw . On this record there can be little
doubt that the Respondents were troubled by the threatened establishment of a bargaining
representative for their employees , and were opposed to the principles of collective bargaining.
The findings made above in the sections of this report that treat with the Respondents' inde-
pendent acts of interference , restraint , and coercion at about the time of the discharge, and
with their refusal to bargain with the Union even after its certification , generally support that
proposition . More particular evidence of the Respondents ' disposition at the time of Savary's
discharge to resort to discharge measures to thwart the Union's organizational efforts is found
in the thinly veiled threat made by General Foreman -Farrell to another leading union advocate,
Raiford Brooks , on the afternoon of Savary 's discharge and again on the following day, that he,
too, might endanger his position with the Respondents if he persisted in his union activities: m
14 The Respondents point to their failure to discharge Brooks as well as another employee
whom they believed at the time to be active in union organizational work as negating an
inference of discriminatory motive on their part Although I have weighed that fact in my
appraisal of the total situation , I consider it insufficient to disprove discrimination against
Savary in the light of all the other record circumstances . The Act forbids an employer from
discriminating against any of his employees and he is not excused from the consequences
KIBLER-CAMP PHOSPHATE ENTERPRISE 1085
Clear confirmation that Savary's union activities lay at the root of his discharge is found
supplied by Farrell's remarks to employee Pridgen, reported above, that he had "fired one
white man about the Union" and would fire another if he could get evidence on him.
Upon consideration of the record as a whole, and on the basis of what I am convinced is a
fair preponderance of credible evidence, I reject as implausible the reasons assigned by the
Respondents for Savary's discharge, conclude the Respondents' underlying motivation for the
discharge was Savary's union activities, and find that by discharging Savary on April 5, 1952,
and thereafter refusing to reinstate him, the Respondents discriminated in regard to his hire
and tenure of employment, thereby discouraging membership in the Union, and interfering
with, restraining, and coercing employees in the exercise of the rights guaranteed in Section
7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in connection
with the operations of the Respondents described in section 1, 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
Having found that the Respondents have engaged in certain unfair labor practices, I shall
recommend that the Respondents be ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
Having found that the Respondents discriminated with regard to the hire and tenure of
employment of Norman Savary, I shall recommend that Respondents offer to Norman Savary
immediate and full reinstatement to his former or a substantially equivalent position 15 with-
out prejudice to his seniority or other rights and privileges and make him whole for any loss
of pay suffered by him as a result of the discrimination, by payment to him of a sum of money
equal to the amount he would have earned from April 5, 1952, the date of his discriminatory
discharge, to the date of the offer of reinstatement less his net earnings, 16 to be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289, 291-294. Earnings in one particular quarter shall have noeffect upon the back-
pay liability for any other such period. It will also be recommended that the Respondents
make available to the Board, upon request, payroll and other records to facilitate the checking
of back pay due.
Having found that the Respondents have refused to bargain collectively with the Union as
the exclusive representative of its employees in the appropriate unit, I shall recommend that
the Respondents bargain collectively with the Union and embody any understanding reached in
a signed agreement.
As the unfair labor practices committed by the Respondents were of a character striking at
the roots of employee rights safeguarded by the Act and disclose a propensity on the part of
the Respondents to continue, although not necessarily by the same means, to defeat self-organi-
zation of its employees, it will also be recommended that the Respondents cease and desist
from infringing in any manner upon the employee rights guaranteed-in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. International union of Operating Engineers , Locals 925 , 925-A, 925-B, and 925-C.
A.F.L., is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees, including the prospecting crew at the
Respondents ' plagt, Section 12 Mine, in Citrus County , near Dunnellon , Florida, but excluding
of his conduct merely by showing he has knowingly refrained from discriminating against
others. Clearly, a complete housecleaning of union supporters is not essential to a finding
that a given employee has been discriminated against.
is The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
1sCrossett Lumber Company, 8 NLRB 440, 447-498; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
337593 0 - 55 - 70
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office and clerical employees, guards, and 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.
3. At all times since August 13, 1952, the Union was, and now is, the exclusive representa-
tive of all employees in the aforesaid unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By refusing since September 3, 1952, to bargain collectively with the Union as the exclu-
sive representative of all its employees intheunit described in paragraph numbered 2, above,
the Respondents have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Norman Savary,
thereby discouraging membership in the Union, the Respondents have engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with , restraining , and coercing their employees in the exercise of the
rights guaranteed by Section 7 of the Act, the Fespondents have engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondents have not engaged in unfair labor practices as alleged in the complaint
by reason of their discharge of Willie Smith.
[Recommendations omitted from publication.]
JOHNSTON LAWNMOWER CORPORATION and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS,* AFL, Petitioner.
Case No. 15 - RC-908. February 5, 1954
DECISION, ORDER, AND DIRECTION OF ELECTION
On May 8, 1953, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was held
under the direction and supervision of the Regional Director
for the Fifteenth Region among employees in the stipulated
unit. The tally of ballots furnished the parties after the elec-
tion shows that, of approximately 110 eligible voters, 108 em-
ployees cast ballots, of which 51 were for, and 56 were against,
the Petitioner, and 1 was challenged. On May 13, 1953, the
Petitioner filed timely objections to conduct affecting the re-
sults of the election.
In accordance with the Board's Rules and Regulations, the
Regional Director conducted an investigation of the matter
raised by the Petitioner's objections and, on August 14, 1953,
issued and duly served upon the parties his report on objections,
in which he found merit in some of the objections and recom-
mended that the Board set the election aside and direct a new
election. Thereafter, on August 21, 1953, the Employer filed
exceptions to report on objections.
Briefly, the facts indicate that the Employer has had in effect
a rule forbidding any solicitation or distribution of handbills,
etc., on company property for any reason whatsoever, without
the express approval of the assistant manager. From April 10,
1953, through -May 7, 1953, the Employer issued some 12 letters
or memoranda concerning the election or matters relating to
union representation. At least 2 of these memoranda, one dated
107 NLRB No. 217.