Can-Tex Industries

National Labor Relations Board - Board Decisions

Jun 23, 1981

256 N.L.R.B. 863 (N.L.R.B. 1981)

CAN-TEX INDUSTR[ES 863
Can-Tex Industries, Division of Harsco Corporation
and UBC, Southern Council of Industrial Work-
ers, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Case 26-CA-
8052
June 23, 1981
DECISION AND ORDER
On February 23, 1981, Administrative Law
Judge Jerry B. Stone issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting
brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Can-Tex Indus-
tries, Division of Harsco Corporation, Magnolia,
Arkansas, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order.
I The General Counsel and the Respondent have each excepted to cer-
tain credibility findings made by the Administrative Law Judge It is the
Board's established policy not t overrule an administrative law Judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dr' Wall Products. Inc., 91 NLRB 544 (1950), enfd 188
F.2d 362 (3d Cir 195l). We have carefully examined the record and find
no basis for reversing his findings.
2 We correct the Administrative Law Judge's inadvertent failure to
specify that interest on the backpay awarded is to be computed in the
manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). In
accordance with his dissent in Olympic Medical Corporation, 250 NLRB
146 (1980), Member Jenkins would award interest on the backpa: due
based on the formula set forth therein.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on March 26 and 27, 1980, in El Dorado, Arkansas.
The original charge was filed on September 20, 1979.
The amended charge was filed on October 22, 1979. The
original complaint in this matter was issued on Novem-
ber 2, 1979. The complaint was amended on January 10,
1980. The issues concern whether Respondent, in viola-
tion of Section 8(a)(1) of the Act, engaged in acts of in-
256 NLRB No. 143
terrogation, threats, solicitation, and promises, and dis-
charged certain named employees because such employ-
ees engaged in protected concerted activity.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by the
General Counsel and Respondent and have been consid-
ered.
Upon the entire record in the case and from my obser-
vation of the witnesses, I hereby make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
2
Can-Tex Industries, Division of Harsco Corporation,
Respondent, is now, and has been at all times material
herein, an Arkansas corporation with an office and place
of business in Magnolia, Arkansas, where it is engaged in
the manufacture of plastic pipes. During a 12-month rep-
resentative period, Respondent sold and shipped from its
Magnolia, Arkansas, facility products, goods, and materi-
als valued in excess of $50,000 directly to points outside
the State of Arkansas. During a 12-month representative
period, Respondent in the course and conduct of its busi-
ness operations purchased and received at its Magnolia,
Arkansas, facility products, goods, and materials valued
in excess of $50,000 directly from points outside the
State of Arkansas.
As conceded by Respondent and based on the forego-
ing, it is concluded and found that Respondent is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE I.ABOR ORGANIZATION INVOI.VED
3
UBC, Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues-Supervisory Status4
At all times material herein, the following named per-
sons occupied the positions set opposite their respective
names and have been, and are now, agents of Respond-
ent, acting on its behalf, and are supervisors within the
meaning of Section 2(11) of the Act.
Fred Bradley
Scott Dickson
Teddy Lee
Plant Manager
Plant Engineer
Supervisor, Blending and
Quality Control
I Certain of tlhe (Genera Cunsel's and Respondentl post-iriial motlion,
have hn d ispoed of hb order idenllfied a AL J F xh andi received
into the record
I'heT facts herein are based on the pleadings and admissions therein
:' The fact, are based on the pleadings ad admissions therein
' The facts hereit are based on he pleadings and admissions therein.
CAN-TEX INDISTRIES 863
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Background
Can-Tex Industries, Respondent, at all times material
herein, was engaged in the manufacturing of plastic pipes
at its Magnolia facility. The plant is divided into four de-
partments: Production, grinding, shipping and receiving,
and maintenance. In the production of plastic pipes, Re-
spondent uses eight extruding machines which pump a
polyvinyl chloride compound (PVC) through a die
system where it is formed into a basic shape of a tube or
pipe and ultimately cut into desired lengths. Other relat-
ed functions, such as mixing the PVC compound itself,
grinding pipe, and treating finished pipe to facilitate join-
ing lengths together, are performed in the production de-
partment.
The plant operates on a four-shift schedule. Thus,
eight extruding machines run 24 hours a day, 7 days a
week, 365 days a year. When the need exists, the ma-
chines can be shut down in 15 minutes. When machinery
is shut down, the PVC compound is held back and a
purging compound is run through the machines which
serves to push the resin out of the extruder barrels. This
cleans the machines and thereby eliminates possibility of
damage by buildup or burning.
Starting the machines back up is more difficult. The
operator must set correct temperatures on the extruder
dial and die system, twisting and pulling the pipe as it
begins to leave the extruder, inserting the pipe in the
puller, and then inflating the pipe with air pressure. Fi-
nally, the operator must make sure that correct speed is
maintained on the puller and that the belling apparatus is
functioning correctly. On the average, it would take
about an hour and 10 minutes to start the machines after
they have been purged. Depending on whether the ma-
chine is a single-head machine or a double head-machine,
it requires from two to four employees to get the ma-
chine started again.
Once the machines are set up and operating, such ma-
chines may continue to operate without significant criti-
cal adjustments. Some machines have operated on such a
basis for a week or two. However, two operators do
monitor such machines and make necessary adjustments
as may become necessary. It is clear that monitoring is
necessary to see that correct temperatures are maintained
on the machines and that all aspects of the equipment are
functioning properly. Further, an employee must periodi-
cally remove the extruded pipe from the pipe racks.
Prior to Respondent's purchase from Robintech on
July 1, 1979, the plant had been in operation for several
years. Prior to Robintech's purchase in 1978, the plant
was owned and operated by Amoco. While operating
under the management of Robintech and Amoco, em-
ployees constantly contemplated shutting down the
plant. In such a climate, Amoco in March 1977 granted
another week of vacation and another holiday. These
benefits and another holiday were taken away 2 months
later when Robintech purchased the plant from Amoco.
Throughout Robintech's ownership the employees dis-
cussed having a plant shutdown.
Scott Dickson commenced working for Amoco as
temporary help in March 1977. Around the last of 1977,
Dickson became a full-time permanent employee of Ro-
bintech. In the first part of 1979, Dickson was classified
as a maintenance supervisor. Later, before July 1, 1979,
Dickson became classified as plant engineer in charge of
production and maintenance. When Respondent Can-Tex
took over operations, Dickson continued as plant engi-
neer in charge of production and maintenance.
Apparently one reason for employee dissatisfaction
and desire for a shutdown of the plant was employee dis-
satisfaction with management. The local top management
at Robintech before July 1, 1979, and at Can-Tex after
July 1, 1979, consisted of Plant Manager Fred Bradley
and Plant Engineer Dickson.
Dickson and Billy Jester had a good relationship while
Dickson was only maintenance supervisor. After Dick-
son became plant engineer in charge of production and
maintenance, Jester expressed dissatisfaction with Dick-
son and his abilities. The main basis for Jester's dissatis-
faction appears to have been Jester's belief that Dick-
son's job as plant engineer over production and mainte-
nance should have gone to a production supervisor. If
such had been done, lead operators, like Jester, would
have been in line for promotion to the job of production
supervisor. Regardless of the merits of these beliefs or
claims, Jester expressed dissatisfaction as to Dickson's
ability and his having the job as plant engineer in charge
of production and maintenance. Such dissatisfaction was
apparently expressed to supervisors and to employees.
Some of the supervisors reported to Dickson that Jester
was dissatisfied with Dickson as plant engineer.
On or about July 1, 1979, Respondent Can-Tex took
over operations from Robintech. On that date employees
discussed having an immediate shutdown of Respond-
ent's plant. Jester told his fellow employees that he did
not want a shutdown of the plant, that he would do his
best to get someone to come and talk to them. Jester
spoke to his foreman, James Pace, and arranged for a
meeting with Bob Oger, from personnel. Such meeting
occurred on the morning of July 2, 1979.
Bob Oger and at least one operator off each shift were
present at the July 2 meeting. The employees informed
Oger that they could not get anything accomplished
about the terms and conditions of their employment
when they went through the plant manager, Fred Brad-
ley, or the plant engineer, Scott Dickson. They further
expressed their belief that they were being treated in the
same manner by Respondent as they had been by Robin-
tech. They specifically complained that employees were
not in the proper pay classifications for the jobs they
were doing. They also inquired into the possibility of a
pay raise and acquiring new tools. Oger responded by
stating that he would have to think about what was dis-
cussed, that he would have someone to come to the
plant in or about 2 weeks to tell the employees what
benefits they were entitled to, and that he would be at
the plant at least once a month to discuss any employee
problems. Despite this pledge, Oger never returned to
meet with the employees on such matters prior to the
shutdown on September 10, 1979.
Sometime within 5 days after Respondent commenced
operations, Scott Dickson met with production and
maintenance employees in order to distribute an outline
of employee benefits and to obtain employee signatures
CAN-TEX INDUSTRIES 865
for tax and insurance purposes. Having only the informa-
tion supplied on the outline, Dickson testified that he
was not able to provide much information in regards to
what these benefits really entailed. He instead informed
employees that someone would be around in approxi-
mately 2 weeks to answer their questions.
Although the outline of benefits indicated that "specif-
ic questions should be directed to the attention of Scott
Dickson," it appears that Dickson needed help in re-
sponding to the employees. Dickson credibly testified to
the effect that employees were instructed to put their
questions in writing. Exactly when such instructions
were given or when questions were submitted is not
clear. However, such instructions and questions clearly
occurred before September 5, 1979. Sometime around
the first of September 1979 Respondent posted a docu-
ment of questions and answers, such questions apparently
being the questions received from employees. 5
Around the first of July 1979 and prior to July 9, 1979,
there was an occasion when Billy Jester, Billy Ray
Tatum, Supervisor James Pace, and Supervisor John
Holly were in the parking lot of the plant and talking
about the idea of a plant shutdown. What occurred is re-
vealed by the following credited excerpts from Tatum's
testimony. 6
Q. Do you recall around what time of day this
conversation took place?
A. About 12:30, 12:45 at night.
Q. Do you recall what was said? The best you
can remember, just say all that you can remember.
A. Well see, James Pace and John Holly was tell-
ing us that the company wasn't being fair to us, that
we should shut the plant down and they would
back us up, that they thought things wasn't going
right and they wasn't telling us what we should
know and, you know, just in general things wasn't
going to our-like it should be. The company-we
didn't know any insurance, we didn't know what
was going on and they thought if we shut the plant
down or kind of showed some system of striking or
something, the company would confer with us on
some questions that we wanted answered.
Q. Was anything else said during this conversa-
tion?
A. Well Billy Jester said, you know, if we did
strike and put up a picket line and everything, that
they'd have to go through him to start the plant
back up and he said they'd just have to go through
him to start it up and they said they would back it
up if we struck, that they would go along with us.
Q. Did you say anything during this conversa-
tion?
5 The document of questions and answers was dated September 5,
1979. The evidence, however, is not of such probative clarity, consider-
ing the timing of critical events, to reveal that the document was posted
prior to September 10, 1979. However, whether posted on or about Sep-
tember 5, 1979, or after September 10. 1979. the ultimate findings in this
case would not be affected
6 Of all the witnesses to this event, I found Tatum to appear to be tes-
tifying in a more complete, truthful. and objective manner I credit his
testimonial version of the events over the testimony of an' witness in
conflict therewith
A. Yes ma'am, I told them I wouldn't do it, not
unless the majority of the people would go along
with it.
Q. You wouldn't do what?
A. I wouldn't shut the plant down.
Q. Then what was said?
A. Well Billy Joe said if you wouldn't shut it
down, it'd be shut down and you wouldn't go along
with it, that he'd have to whup me, fight me.
Q. Okay. What did you say?
A. I just laughed and said well if the majority
goes along with it, you wouldn't have to worry
about me.
Q. Did you take it as a threat?
A. No ma'am, not at all.
Sometime in July 1979 and prior to July 9, 1979, em-
ployee Faye McEachern told Plant Engineer Dickson
that she had heard that an operator had threatened a
fellow employee, that the threat was a severe one, that
she did not know what the dispute concerned, but that
the incident had occurred in the break room. McEachern
told Dickson that Danny Phillips was the employee
threatened. McEachern did not tell Dickson the name of
the operator who had threatened Phillips.
Dickson spoke to Plant Manager Bradley about the al-
leged threat and was instructed to attempt to find out
who had made such a threat. Instead of going to Phillips
to ascertain who had made a threat to Phillips, Dickson
commenced talking to other employees and inquiring if
they had heard of any threats. Apparently Dickson re-
ceived information of a nature to cause him to believe
that an operator or operators had made a threat or
threats to whip a person if there were a shutdown and
the person tried to cross the picket line.7
C. Events-Circa July 9, 1979
1. Interrogation of Bethany-promises to Bethany8
Apparently after the foregoing, Plant Engineer Dick-
son and Plant Manager Bradley commenced interviewing
various operators in Bradley's office. These interviews
occurred prior to, but around, July 9, 1979. The first two
operators to be interviewed were Mike Bethany and
Jimmy Bryant. What occurred is revealed by the follow-
ing credited excerpts from Bethany's testimony and find-
ings of facts as indicated.'
7 Considering all of the facts relating to talk about a shutdown, and the
smallness of Respondent's plant, an inference is warranted that Dickson
learned that there had been talk of someone being whipped if there were
a shutdown and anyone tried to cross the picket line Since Jester had
made such remarks, it would appear that there would be talk of the same
H Some of the allegations of conduct violative of the Act are substan-
tially similar. The pleadings and litigation reveal that the allegations were
as to specific events and not covering a number of events Considering
the date of a memorandum of warning concerning Jester and the alleged
threat, I fix the timing of events as set forth
9 The cross-examination of Bethany elicited testimony to the effect that
his testimony, concerning the questioning as to whether threats had been
made, may not have been word for Word However. Dickson's testimony
corroborates Bethan.'s testimony that there were questions by Dickson
as to whether Bethany and Bryant had made threats Considering this
Continued
CAN-TEX INDUSTRIES 65
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. When you went into Mr. Bradley's office, the
best that you can recall, what was said?
A. Scott was asking us if we was trying to orga-
nize the plant and I asked him what he was talking
about and he said are y'all trying to go union and
he went on to say if we didn't go union our benefits
would be better than the union plants.
Q. Just go on, just say all of what you can re-
member being said.
A. He wanted to know what was the matter out
in the plant with everybody, and we told him the
pay scale was wrong for the helpers, that we had
lost holidays and vacation and we didn't know
nothing about insurance, that much about it, we just
knew we had it, we didn't know what they done or
nothing, paid for or anything.
Q. Was anything else discussed that you know
of?
A. Well they asked us if we had heard about any
threatening, which I hadn't heard nothing about it.
That was the first that we knew about any threaten-
ing.
Q. He asked you what?
A. If we had done any threatening. He said the
finger was pointing at us, that we had threatened
somebody.
Q. Uh-huh.
A. That wouldn't walk out with us. And we told
him we hadn't threatened nobody and hadn't heard
nothing about it.
Q. He asked if you had threatened somebody if
they didn't walk out with y'all?
A. Yes ma'am.
Q. Were those his words?
A. Yes ma'am.
Q. Did he use the words shut down the plant?
A. Oh, no ma'am-wait a minute. He asked us if
doing a little reminiscing and this and that and the
other and he also made a couple of comments about
why he thought Billy Jester and some of the other
employees were so hostile toward my being in the
production supervisor-
Q. Do you recall exactly what he said, why he
said they were hostile?
A. He told me his feelings were that it was strict-
ly because I had come out of the maintenance de-
partment into a production oriented job. Mike Beth-
any's response after the initial no I wasn't involved
in the threat, was basically the same because Mike
and I also grew up together in the same small town
in south Arkansas, and he relayed basically the
same thing to me that Jimmy Bryant had relayed to
me. After that discussion they left.
Contentions and Conclusions
The General Counsel alleges and contends, and Re-
spondent denies, that (1) on or about mid-July 1979 Re-
spondent acting through Scott Dickson, at Respondent's
facility: (a) interrogated its employees about their union
membership, activities, and sympathies and the union
membership, activities, and sympathies of their fellow
employees, (b) promised its employees better benefits if
the plant did not go union, and (c) promised its employ-
ees increased benefits and improved terms and conditions
of employment by soliciting employee complaints and
grievances.
Considering the facts relating to Dickson's remarks to
Bethany and Bryant, I am persuaded that the facts reveal
that Respondent engaged in conduct of interrogation of
an employee about his and other employees' union activi-
ties or desires, that a legitimate basis or need did not
exist for such interrogation, that assurances of nonrepri-
sal were not made, and that under such circumstances
such interrogation was coercive and violative of Section
8(a)(l) of the Act.
Considering Dickson's remarks to the effect that if the
employees did not go union that their benefits would be
better than the union plants in the context of the re-
ferred-to interrogation concerning union activities and
the solicitation of grievances and implied promises of in-
creased benefits, the facts reveal a promise to the em-
ployees of better benefits if they did not select a union.
Such conduct by Respondent is violative of Section
8(a)(1) of the Act. It is so concluded and found.
Considering Dickson's inquiry as to grievances in the
context of the referred-to interrogation and statement of
comparative benefits, the facts reveal an implied promise
of increased benefits and improved terms and conditions
of employment given to dissuade employee support of or
interest in a union. Such conduct by Respondent is viola-
tive of Section 8(a)(1) of the Act. It is so concluded and
found.
2. Alleged threats to Kennedy
Either on the same day or apparently shortly thereaf-
ter, operator James Kennedy was called to Plant Man-
ager Bradley's office. There a conversation ensued be-
we had threatened anybody.
Q. Who asked you this?
A. Scott Dickson.
Q. He asked you if you had
and what else did he say?
A. He said when he found
would personally fire them.
Q. When he asked you if
anyone, what did you say?
threatened anybody,
out who it was, he
you had threatened
A. I told him no, I hadn't threatened no one,
didn't intend to threaten anybody.
In the conversation, Bryant either stated in response to
a question or on his own about the reason for hostility
by Jester and others to Dickson. What occurred in such
regard is revealed by the following credited excerpts
from Dickson's testimony.
From that point on, the conversation on the part of
Mr. Bryant was really related to he and I in terms
of the fact that we grew up together and we were
and the total context of the facts, I find Bethany's testimony reliable as to
what was said concerning threats. As to Bethany's testimony otherwise.
such testimony appeared more complete and reliable than did Dickson's.
I credit Bethany's estimony over Dickson's where in conflict
CAN-TEX INDUSTRIES 867
tween Plant Engineer Dickson and Kennedy. On such
occasion Dickson questioned Kennedy as to whether he
had made any threats to employees. Kennedy denied
having made any threats to employees. ° What occurred
then is revealed by the following excerpts of credited
testimony by Kennedy and findings of facts otherwise. "
Q. The best that you can recall, could you tell us
what was said?
A. I went to the office, Scott's office first, and I
asked him what he wanted. He said Fred and him
wanted to talk to me in Fred's office. We went in
there and they wanted to know what the problem
was out on the floor.
Q. Who said what?
A. Scott wanted to know what the problem was.
I told him that the people were dissatisfied.
Q. What else was said?
A. And he wanted to know what the dissatisfac-
tion was. I told him they were dissatisfied with the
insurance, they didn't know what the insurance was
or the benefits and all since a new company had
taken over. They were also dissatisfied with their
pay scale. They didn't feel it should take eighteen
months to reach from hire in pay to top helper's
pay. They were also dissatisfied with people work-
ing as operators and getting helper's pay.
Q. Was anything else said?
A. Yes. Scott said he knew that I had tried to
help organize a union in 1971 with OCAW .... I
told him the situation the way it was going now the
union was very possible coming in. He said Can-
Tex people didn't care because the other five plants
were union.
Apparently before July 1979, Kennedy had requested a
transfer from the shift that Jester was on to another shift
and had been transferred. Later, however, Kennedy had
been transferred back to the shift that Jester was on. The
overall facts reveal that Dickson steered the conversa-
tion into an inquiry of why Kennedy had transferred
back to his old shift. Dickson had heard that Kennedy
had transferred back because he had not received an in-
crease in pay and promotion. Dickson told Kennedy
why he had not received a promotion. What occurred as
regards such discussion is essentially revealed by the fol-
lowing credited excerpts from Dickson's testimony.
The next operator was James Kennedy. Here again,
he came in when his shift came on. I asked him ini-
' I credit Dickson's testimony over Kennedy's as to whether he ques-
tioned Kennedy about having made any threats. This resolution of credi-
bility is essentially based on a consideration of the logical consistency of
all of the facts.
II As to the facts as credited. I found Kennedy's version of events
more complete and reliable As to Kennedy's testimony concerning re-
marks by Dickson as to loss of privileges or restrictions if the plant 'went
union, I do not credit such testimony. Kennedy's testimony on cross-ex-
amination reveals that he was unsure that Dickson made such remarks
Dickson denied making statements to employees that employees would
have to stay at their machines and that employees could not go to town
and bring back their lunch. Dickson testified that he had made such state-
ments to Supervisor Pace. Kennedy's testimony revealed an unsureness
Perhaps Kennedy heard that Dickson had made such remarks and was
confused as to what had been said
tially if he had been involved in threatening a
fellow employee, his response was no. After that
had been determined the bulk of his conversation
revolved around the fact that he had asked to be re-
moved from the shift that Billy Jesters was on, to
be moved onto John Holly's shift for two primary
reasons. One was, according to him, to get away
from Billy and the other one was that there was
good prospect that he might be able to make a lead
operator on Mr. Holly's shift. When he transferred
shifts he did it with the understanding that he
would have to take the same tests that all of the
other lead operators had had to take. Unfortunately
he never availed himself of the test and as a result
of that he never got promoted into that other job.
Evidently as a result of not getting promoted into
the other job he got discouraged and wanted to go
back to his original shift, which this happened while
I was on vacation. When I got back from vacation
he was back on his original shift. I didn't ask him
prior to the meeting that we had with him that
we're discussing right now, I didn't ask him why he
had gone back. I had heard the reason why he
wanted back was because he had not gotten the in-
crease in pay and promotion. This turned out to be
a good opportunity for him to express his opinions
on what had happened and, of course, I explained
to him why he never got the promotion and the
fact that I had offered to give him the test on two
different occasions and he didn't take it. That was
the bulk of the conversation.
Contentions and Conclusions
The General Counsel alleges and Respondent denies
that Scott Dickson, "on or about early July, 1979, threat-
ened its employees with more onerous working condi-
tions by informing them that they would have to stay at
their machines all day and would not be allowed to go
to town and bring their lunch back if the employees se-
lected their union as their bargaining representative."
Considering the credited aspects of the testimony of
Kennedy, the facts do not reveal that Respondent en-
gaged in the above-referred to alleged conduct violative
of the Act. It will be recommended that the allegations
of conduct violative of the Act be dismissed.
I would note that Kennedy's testimony, as to Dick-
son's inquiry as to grievances, and to Dickson's reference
to Kennedy's having been in a union, supports similar
findings of conduct violative of the Act as previously
made concerning the events in which Bethany was in-
volved. The pleadings, however, related to conduct di-
rected to an "employee" and the pleadings concerning
the events testified to by Kennedy only referred to al-
leged "threats." In any event, further findings are unnec-
essary and would not affect the remedy.
3. Solicitation, promises of benefits, and the
interview of Jester
Sometime after Dickson had spoken to Kennedy as set
forth previously, Respondent requested that Jester report
to Plant Manager Bradley's office. Jester reported to
CAN-TEX INDUTRIES
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bradley's office. At this time Plant Manager Bradley and
Plant Engineer Dickson spoke to Jester. Dickson in
effect asked Jester whether he had made threats against a
fellow employee. Jester responded by asking Dickson in
effect what threat had been made. Dickson told Jester
that he understood that the threat had been to punch
someone in the face. Jester apparently thought that the
alleged threat was with reference to what he had said to
Billy Ray Tatum to the effect that if there were a shut-
down and someone tried to cross the picket line that he
would whip them. Jester indicated to Dickson that he
had made a threat to a fellow employee. 12 Dickson and
Bradley then questioned Jester concerning problems as is
revealed by the following credited excerpts from Jester's
testimony.
They asked me if I knew what the problems was
out there and I told them the best I could.
Q. What did you tell them?
A. I told them that it was on account of the boys
not being able to get a raise for the helpers before
18 months and we couldn't keep good hands out
there to work, there's too much turnover and it was
costing too much money and everything and it was
in the benefit of the Company that I was talking to
them.
Q. Was anything else said?
A. They asked me if I could go out there and
talk to the employees and get them to work things
out and everything and I told them there wasn't
nothing that I could do, it had gone too far.
Dickson testified in a conclusionary manner that Jester
told him in effect that he, Dickson, was inept, and that
Jester would not work with him. I discredit Dickson's
testimony that Jester told him that he would not work
with him. However, I do credit Dickson's testimony that
Jester told him that he was not qualified for the produc-
tion manager's job. The facts relating to such remarks by
Jester are as revealed by the following credited excerpts
from Dickson's testimony.
Q. In the job of production manager?
A. Production manager, right. That I was not
qualified for it because I had never been an extruder
operator, I had been doing a fine job as far as the
maintenance aspect of it was concerned, but I had
no business in the production part of it. I tried to
explain to him that I didn't put myself in that job,
that someone else decided that and I would have
been very foolish to have turned it down, I think.
At times I questioned that, but-most of it revolved
around me and his feelings toward me and I repeat-
edly asked him to work with me, to give me an op-
portunity, if he was having problems I wanted to
try to help him, so on and so forth and toward the
end of the meeting he did finally say that he would
give it a try. That's as much as I could ever get out
12 Dickson testified to the effect that he gave more details as to where
the "threat" occurred. I discredit his testimony to such effect. Consider-
ing the total testimony of Jester, Dickson, and all of the facts, I am per-
suaded that the testimony of each witness should be credited to the effect
as set forth by the facts found.
of him as far as cooperation. To my knowledge he
never did, after the meeting he didn't give it a try. I
did write Mr. Jesters up with a verbal warning
written up and put it in his personnel file strictly as
a reference. Here again, the warning was not be-
cause of his feelings toward me, it was because of
this constant input or what it seemed to me constant
input of fellow employees about his behavior and
attitude.
Although Dickson did not give Jester a written repri-
mand, Dickson completed a form described as an "Em-
ployee Warning Record," indicating that a verbal warn-
ing was given Jester on July 9, 1979, that the date of
conduct complained of was during the week of "1-7-
79." t3
Contentions and Conclusions
The General Counsel alleges and Respondent denies
that (1) on or about mid-July 1979 Respondent, acting
through Fred Bradley at Respondent's facilities, interro-
gated its employees regarding its employees' union mem-
bership, activities, and sympathies and regarding their
fellow employees, and (2) on or about mid-July 1979 Re-
spondent, acting through Fred Bradley and Scott Dick-
son at Respondent's facility, by soliciting employee com-
plaints and grievances, promised its employees increased
benefits and improved terms and conditions of employ-
ment.
Considering the foregoing facts concerning the inter-
view of and conversation among Bradley, Dickson, and
Jester, and in the context of the conversations on or
about the same date among Dickson, Bethany, Bryant,
and Kennedy, the facts reveal as alleged that Respond-
ent, by its solicitation of grievances and in the manner
and context as done, engaged in implied promises of in-
creased benefits and improved terms and conditions of
employment if the employees did not engage in union ac-
tivity. Such conduct is clearly violative of Section 8(a)(l)
of the Act. It is so concluded and found.
The credited facts do not reveal, as alleged in effect,
that Respondent, by Bradley, interrogated Jester about
his or others' union activities. The allegation of unlawful
conduct in such regard will be recommended to be dis-
missed.
"a Jester also testified to the effect that Bradley asked him if there
were any union talk out there At the time of this testimony, the General
Counsel's complaint did not include an allegation that Respondent, by
Bradley, had engaged in interrogation of employees about the Union. At
the hearing, after such testimony, the General Counsel amended the com-
plaint to include such allegation Bradley was not presented as a witness.
Respondent, however, cross-examined Jester concerning a pretrial affida-
vit which set forth that Jester had denied to Dickson and Bradley that he
had threatened an employee. Further, cross-examination revealed that
Jester had set forth in a pretrial statement that the Union was not men-
tioned in the conversation he had with Dickson and Bradley. The pretrial
affidavit of Jester contained such a statement. Jester's testimony concern-
ing why his affidavit contained a denial of threats and how he now re-
called that he had been questioned about union talk was not persuasive. I
discredit his testimony to the effect that he as questioned about union
talk. The reference to week of "I 7 79" appears to be in military refer-
ence to first week of Jul 1979
CAN-TEX INDUSTRIES 869
D. The No-Solicitation Rule
The facts reveal that Respondent in July of 1979 had a
policies and procedures manual in which a rule set forth
that "[t]he Company doesn't allow soliciting of any kind
on company premises." The credited evidence reveals
that copies of Respondent's policies and procedures
manual were placed for employees' benefit at a location
on plant premises or distributed otherwise. There is no
evidence that any solicitation occurred at times material
to this proceeding. Nor is there evidence that this rule
was actually enforced.
There is evidence that Respondent's predecessor had
many of the same policies and procedures that Respond-
ent has had during the relevant time of the events in-
volved in this proceeding. On October 10, 1979, Re-
spondent reworded the rule against soliciting as is re-
vealed by the following copy of a notice relating thereto.
NOTICE TO ALL EMPLOYEES
Please note Plant Rule 14 on page 5 of your "Poli-
cies and Procedures" brochure that was recently
distributed to you. We have received advice that
this rule needs to be reworded as follows:
14. CAN-TEX Industries does not allow solicita-
tion of any kind during working hours in work-
ing areas.
Effective today, we are changing this wording in
"Policies and Procedures" brochures in stock.
Please change this in your brochure as well.
CAN-TEX INDUSTRIES
Don Bailey, Vice President
Industrial Relations
An examination of the evidence relating to the policies
and procedures of Robintech and of Can-Tex indicates
that the policies and procedures of the two companies
are essentially similar. There is, however, enough differ-
ence of substance as to some of the policies and proce-
dures to reveal that Can-Tex did not simply, without
consideration, adopt as its own the policies and proce-
dures of Robintech.
Considering all of the foregoing, it must be found that
Respondent had from sometime in July 1979 to October
10, 1979, an overly broad no-solicitation rule. It is clear
that the distribution of policies and procedures, including
such rule, to employees would have an inherently coer-
cive effect. Accordingly, even without evidence of en-
forcement, such rule was coercive and Respondent, by
having such rule, violated Section 8(a)(1) of the Act. 4
14 Daniel Construction Company, a Division of Daniel International Cor-
poration, 236 NLRB 193 (1978); Pepsi-Cola Bottling Co. of Los Angeles.
211 NLRB 870 (1974). The General Counsel does not attack the validity
of Respondent's solicitation rule as modified. Respondent's notice of such
modification, however, is clearly not sufficient to negate the coercive
effect of the prior existence of an unlawful rule.
E. Concerted Complaint'5
The evidence is overwhelming and the facts clearly es-
tablish that from the time of commencement of oper-
ations by Respondent and to September 10, 1979, Re-
spondent's employees concertedly complained to Re-
spondent and discussed with each other about complaints
related to wages, hours, and working conditions of such
employees. Thus, in early July 1979, requests were made
for meeting with Respondent's officials concerning expla-
nations and discussions related to wages, hours, and
working conditions. Plant Engineer Dickson was clearly
aware of complaints about working conditions as a result
of his conversations with Bethany, Bryant, and Kennedy.
That Respondent's belief that such complaints were on-
going is revealed by Respondent's publication in early
September, whether before or after September 10, 1979,
of its answers to questions submitted earlier in writing by
employees. Further, Plant Manager Bradley's conversa-
tion with employee Cooper, around September 1, 1979,
about talk of a shutdown, as well as Dickson's, Holly's,
and other foremen's discussion of an expected shutdown,
all reveal Respondent's knowledge or belief that employ-
ee concerted activity continued from early July 1979 to
September 10, 1979. Further, considering the size of Re-
spondent's plant, it is clear that Respondent was aware
of Jester's ongoing concerted activities.
F. Events-Interrogations-Circa September 6, 1979
Cooper credibly testified to the effect that he had a
conversation with Plant Manager Bradley about a week
before September 10, 1979. What occurred is revealed by
the following credited excerpts from Cooper's testimo-
ny.1 6
Q. Do you remember about how long before the
plant was actually shut down?
A. No.
Q. Do you know if it was a week before, two
weeks before, a month before?
A. About a week I'll say.
Q. About a week, okay. Do you recall what was
said? The best that you can recall, what you re-
member.
A. You mean what I said to Mr. Bradley?
Q. Yeah, whatever was said.
A. Well it was like, I went to pick up my check
on pay day, whatever day it was, and he was in the
office and we started talking and the situation was
coming up at the plant. I told him that I wouldn't
participate in it and he asked me, he said are they
still talking about shutting the plant down and I
told him I don't know but whatever happens I
won't be in it.
Q. You told him you wouldn't be in it?
A. Yes.
Q. Was anything else said about it that you can
recall?
'5 The facts are based on a composite of the credited testimony of all
witnesses.
16 Bradley did not testify in this proceeding.
CAN-TEX INDUSTRIES 9
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. That was all he said, I left.
Contentions and Conclusions
The General Counsel contends and Respondent denies
that Respondent, "on or about September 6, 1979, acting
through Fred Bradley, at Respondent's facility, interro-
gated its employees regarding its employees' concerted
protected activities." Considering all of the facts, I am
persuaded that Bradley's interrogation was not based on
legitimate need. Further, assurances of nonreprisal were
not given to Cooper. Under such circumstances, the in-
terrogation constituted coercive interference with the ex-
ercise of employee protected concerted rights.
Little attention was given by any of the parties to set-
ting forth the precise meaning of "shut down." It is clear
that if employees successfully strike and withhold their
services that there may be a resultant shutdown because
the employer might be unable to continue operations.
Perhaps "shut down" could have reference to a physical-
ly turning off of equipment and a shutting down of oper-
ations. As indicated later, Respondent referred to the
September 10, 1979, activity as an unauthorized shut-
down. Be that as it may, as indicated later, the activities
of the employees on September 10, 1979, in the "shut
down" constituted protected concerted activity and was
not "unprotected" because machinery was cut off and
stopped from running. It is hard to believe that Bradley
construed his remarks as limited to the "shut down" of
machinery and needed to prepare for such eventuality.
Had he done so, it would appear that Respondent would
have advised employees that "if there is a 'shut down,'
do not turn off the equipment," that Respondent would
decide whether the equipment should be turned off and
take steps to protect such equipment. Thus, the facts
reveal that Bradley's interest was simply whether em-
ployees intended to concertedly strike. Considering all of
the foregoing, I conclude and find that Respondent, by
Bradley, coercively interrogated Cooper about his and
others' concerted activities. Such conduct constitutes
conduct violative of Section 8(a)(l) of the Act. It is so
concluded and found.
G. The Discharge of Jester on September 6, 1979
The General Counsel alleged and Respondent ad-
mitted that Respondent discharged Billy Jester on Sep-
tember 6, 1979. There appeared to be a minor question
during the hearing as to whether Respondent discharged
Jester on September 5, 1979. The facts reveal that Jest-
er's last date of work was September 5, 1979, and that he
was notified of discharge on September 6, 1979, before
commencing work on September 6, 1979. Respondent's
records reveal a "Separation Notice" dated 9-6-79
which indicates that Jester was discharged and "left our
employ today." It is clear and I so find that Jester was
discharged on September 6, 1979, before engaging in
work, as was or would have been scheduled otherwise
on that date.
As has been indicated, the facts are clear that Jester
engaged in concerted activities in early July 1979, and
was continuing to engage in such concerted activities up
to the time of his discharge on September 6, 1979. The
facts also reveal Respondent's awareness of such concert-
ed activities, that Respondent was concerned that such
concerted activities might result in attempts at unioniza-
tion of its employees. The facts also reveal that Respond-
ent's concern over a "shut down" triggered the dis-
charge of Jester on September 6, 1979.
As indicated, Respondent discharged Jester on Sep-
tember 6, 1979. What occurred is revealed by the follow-
ing credited excerpts from Jester's testimony.
Q. Now what happened on September the 6th?
A. The day I was fired I got out to the plant
early and sat in the break room. I was always early,
but I had some business to attend to at the bank and
the bank closes at 2:30 so when I got through I
went on down to the plant instead of driving 15
miles back home, I was going to work at 4:00. I sat
in the break room until time to go to work and I
went up there to check pipe at 4:00 and as I started
to check pipe Mr. Pace walked up to me and said I
want to talk to you and I said okay, let her rip and
he said I'm going to have to let you go. I said why,
he pointed toward the front office and said they
want me to. I said I'm not doing a good job for you
and he said it ain't got nothing to do with your job,
said they want me to let you go. I said you can't
give me a reason and he showed me a piece of
scrap paper with insubordinate wrote on it and I
asked him if I could talk to somebody else. He said
I could talk to Mr. Dickson so I went in and talked
to Mr. Dickson about it and I asked him why and
he showed me a piece of scrap paper with insubor-
dinate and embarrassment to the plant management
on it and I asked him how I had been insubordinate
or embarrassed anybody and he would not explain
to me except that he said I was stirring up trouble
and he would not explain to me, how I had been
insubordinate or embarrassed anybody. So I asked
him could I talk to Mr. Bradley and he said I could.
I went in and asked Mr. Bradley why I was being
fired and he said didn't Scott tell you and I said
well, he told me but he wouldn't explain it to me, I
would like to hear it from you. He opened his desk
drawer and started fumbling around in the desk
drawer and I said well, if that's the way you feel
about it and all you've got to say I'll go but I guess
you know that y'all had no reason and I will take
this to the Labor Board and I left.
It is noted that Jester testified credibly that Dickson
showed him a scrap of paper with "insubordinate" and
"embarrassment to plant management" on it. It is not
clear whether the "scrap of paper" referred to by Jester
was the "separation notice" completed by management
and not given to Jester or some other piece of paper. In
any event, the tenor of the "scrap of paper" and the
"Separation Notice" appears to be the same. It is clear
that the Respondent completed a "Separation Notice"
for its files concerning the separation of Jester on Sep-
tember 6, 1979. [Omitted from publication.]
In addition to the foregoing facts, Dickson testified in
effect that the decision to discharge Jester was triggered
CAN-TEX INDUSTRIES 871
by a report from Bradley concerning a complaint against
Jester by an employee named Cooper. Dickson's testimo-
ny in such regard is revealed by the following excerpts
from Dickson's testimony.
Q. Okay. Did you have any other problems with
Mr. Jester?
A. The day that I fired Mr. Jesters, Mr. Bradley
came to me and told me that James Cooper had
been in to see him and that James was very con-
cerned about his job security, the reason being here
again that Mr. Jesters was encouraging him to do
certain things that might jeopardize his job if he
went along with them, and by the same token if he
didn't go along with them Mr. Jesters was going to
make his job very difficult for him. After I received
that bit of information here again I took it seriously
because I didn't think Mr. Bradley would have
brought it to me unless he thought it was serious. I
took that information along with the history behind
Mr. Jesters to Gary Murph. who just happened to
be in the plant because they were initiating a man-
agement training program in the Magnolia plant at
that time. I took all of the information to Mr.
Murph, explained the situation, went through the
whole case with him and he advised me to dis-
charge Mr. Jesters. Based on both misconduct and
insubordination.
Q. And what did you do then?
A. I took his advice and Mr. Bradley's advice be-
cause I had also consulted him, he was the plant
manager, and I called Billy Jester's shift supervisor
into the office, who was James Pace, and instructed
Mr. Pace that he was going to have to discharge
Mr. Jesters on the grounds of misconduct and in-
subordination. I told him why he was being dis-
charged and what terms to use, specifically miscon-
duct and insubordination. I told him to tell Billy if
he had any questions he could feel free to come to
me and ask me, whatever they might be. You want
me to go on?
Q. Yeah, go on.
A. James Pace then went out, found Mr. Jesters
and relayed the information on to him. Mr. Jesters
in turn came to me and wanted to know once again
why he was being discharged, so on and so forth. I
explained to him why he was being discharged, I
explained to him that he was being discharged be-
cause I was receiving numerous complaints from his
fellow workers about his attitude and the climate
that he was generating within the plant and that he
was making other employees within the plant feel
very insecure in terms of any job security, that he
in essence had them between a rock and a hard
place. If they did what he wanted them to do, there
was a possibility they would be fired by the compa-
ny. If they didn't do what he wanted them to do
well then he was putting pressure on them in that
he was going to make their jobs more difficult for
them. He once again expounded upon his belief
about my abilities to do the job and so on and so
forth, and after all that was over he wanted to go
see Mr. Bradley. I went in and told Mr. Bradley
what had happened, why I had decided to go ahead
and fire Mr. Jesters and Mr. Jesters then went in to
see Mr. Bradley. They talked together for ten or fif-
teen minutes. When Mr. Jesters came out of Mr.
Bradley's office he came back through my office
and he made a comment as he was going out the
door, if you had only given me two more weeks I
was going to take my vacation and quit anyway.
And I made the comment well if that's the case,
why don't you go ahead and quit and that way you
won't have to worry about this being on your histo-
ry for the rest of your life. Oh hell no, I've been
fired and I'm going to stay that way, quote. He
then went on out the door.
Dickson was questioned as to acts of insubordination
and other reasons for Jester's discharge. Dickson's testi-
mony appeared to reveal rambling reasons. Thus, Dick-
son alluded (1) to Kennedy's complaint about working
with Jester as part of Kennedy's reason for a transfer and
promotional opportunity, and (2) a complaint by an em-
ployee named Terry that Jester blamed him about work
and threatened his possibility of promotion. As to insub-
ordination, Dickson's testimony veered essentially to a
complaint that Jester was unhappy and complained to
others concerning Dickson's having been promoted to
the job Dickson held. 17 Dickson indicated that Jester did
not in fact disobey any orders. Further, as to miscon-
duct, Dickson alluded to the incident of the "threat" in
early July, the subject of the verbal reprimand, and to
the report by Bradley concerning Cooper's complaint.
Contentions and Conclusions
The General Counsel contends and Respondent denies
that Respondent discharged Billy Jester on September 6,
1979, because Jester engaged in protected concerted ac-
tivities, and that such discharge was violative of Section
8(a)(l) of the Act.
Considering all of the facts, I find merit in the General
Counsel's contentions. It is clear that Billy Jester en-
gaged in protected concerted activities and that Re-
spondent was aware of such activities. It is clear that Re-
spondent was concerned that there would be a "shut
down" and, as a result of Bradley's conversation with
Cooper, believed that there might be a shutdown. It is
clear also from Bradley's report to Dickson, concerning
his conversation with Cooper, that Bradley considered
Jester to be involved in an upcoming shutdown.
Thus, the awareness that a shutdown was still being
talked about among its employees and a belief that Jester
was involved in such talk triggered the decision to dis-
charge Jester. I am persuaded from Dickson's testimony
and the vagueness of much of such testimony that Dick-
son's testimony as regards insubordination and miscon-
duct constituted rationalization designed to develop a
pretextuous reason for the discharge of Jester.
" All of Dickson's testimony has been considered It would burden
this Decision more than necessary to repeat and clarify the exact meaning
of all of Dickson's testimony
CAN-TEX INDUSTRIES
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I would note that Respondent argues in effect that the
employees who physically turned off running equipment
on September 10, 1979, engaged in an "unauthorized shut
down," that such employees were not engaged in pro-
tected concerted activity, and that Respondent could
lawfully discharge such employees for the taking over of
a management decision. It would appear that such argu-
ment would also touch the question of whether Jester
was engaged in protected concerted activities. As indi-
cated later, the facts reveal that the employees who en-
gaged in a "shut down" on September 10, 1979, and who
at such time turned off Respondent's running equipment
were engaged in protected concerted activity. None of
the parties elicited in detail what the employees or super-
visors intended by usage of the words "shut down." As-
suming that Jester's talking of and involvement in a
"shut down" related to the turning off of equipment at
the time of commencement of a shutdown, such does not
reveal his conduct to be unprotected. Further, even if
the turning off of equipment in a shutdown constituted
unprotected conduct, when an employee like Jester has
engaged in concerted activity which is protected, mere
talk, as in this case, would not remove him from the pro-
tection of the Act. Further, as to the alleged misconduct
directed toward Cooper as related to Dickson by Brad-
ley, Cooper's credited testimony reveals that Jester did
not engage in such misconduct.
In sum, the facts reveal that Respondent discharged
Jester on September 6, 1979, because he had engaged in
protected concerted activities. Such conduct is violative
of Section 8(a)(l) of the Act. It is so concluded and
found.
H. Events-September 6-10, 1979
Respondent's employees, prior to September 6, 1979,
had been talking about having a shutdown. The reason
for such a shutdown was to present grievances and to
cause Respondent to send a responsible official from
Mineral Wells, Texas, to talk to employees about work-
ing conditions and benefits. After the discharge of Jester,
employees believed that Respondent had discharged
Jester because of belief that Jester was a ringleader of
the employees in their plans for a shutdown. The em-
ployees considered the discharge of Jester also as one of
their reasons for having a shutdown and for a meeting
with Respondent's officials.
Norman Biddle, a first-shift operator, and various
other operators and employees wrote up a petition con-
taining the grievances they wished to present to manage-
ment. Biddle and other employees decided that they
would "shut down" the plant around the commencement
of September 10, 1979. The evidence indicates that the
employees on the various shifts had all agreed upon a
shutdown. There is no evidence that any employee did
not agree with the idea of a shutdown.
The employees had decided to have the shutdown
around midnight so as to avoid the presence of Plant
Manager Bradley and Plant Engineer Dickson.
Sometime during the several days before September
10, 1979, Supervisor Holly had talked with some of the
employees about their plans for a shutdown and had ex-
pressed his opinion that they were going about the
matter of presenting their grievances in the wrong
way. 8
The facts reveal that Supervisor Owen Fleming, on
September 9, 1979, around 8 a.m., told Supervisor Holly
that he understood that the employees planned on shut-
ting the plant down on Holly's shift that night around
midnight.
I. Events-September 10-14, 1979
Around 12 a.m. on September 10, 1979, employees
who were not working joined with employees who were
working and turned off the various machines which were
running. Biddle credibly testified to the effect that the
employees turned off the machines in order to prevent
damage to the machines by the running of machines
without attendants. 9 What occurred is revealed by the
following credited excerpts from Holly's and Biddle's
testimony. 2
Excerpts From Holly's Testimony
Q. Could you tell me what happened that night?
A. Well I got to work about ten or fifteen min-
utes before relief time, before twelve. Jack Cassiday
was the shift supervisor before me. I came in, I
asked him how everything was running, he said ev-
erything was running fine. I talked to him about
five minutes and I said Jack, you got everything fig-
ured you can go on and I'll take it now and he said
okay. Jack left and I looked out across the plant
and it seemed to be running good. I turned and
Tatum, Billy Ray Tatum and Bill Goza came in the
office. I had my back to them where the door come
in and they said John, we don't have anything
against you and I said now wait a minute. I had
heard as I was leaving the next morning after my
crew had gone, Owen Flemings had told me they
were planning on shutting the plant down on me at
twelve o'clock that night, the next night. So I said
wait a minute, I said you don't want to do this and
they said yeah, we haven't got anything against you
but we just feel like we need to do it. So I turned
around and started facing them, they were at the
back part of the office. And I was trying to talk
them out of it. I said I didn't think they were doing
the right thing. I knew they had problems and all
but that's not the way to handle it. Then Tatum
said well it's too late now and I turned around and
there was a couple or three people on each machine
where you put the material into it and they were
purging the machines out.
* * * *
"I The overall facts reveal that Holly was sympathetic to the employ-
ees in their desire to present grievances and to obtain better working con-
ditions and benefits. His testimony, however, on this point is uncontra-
dicted and believable.
19 Eight extruders were turned off. Several chillers were not turned
off
20 There appears to be little dispute between the testimony of Biddle
and Holly as to what occurred.
CAN-TEX INDUSTRIES 873
There was a couple or three people at each ma-
chine, they were putting purge into the machine. At
that time Goza and Tatum left out of the office and
they went over here to the other side and started
purging the machines over there, purging those out,
or helping. I walked back-Goza went to one side,
Tatum went to the other. I went over there to the
number five machine, Goza was on it-no, Tatum
was on it. Number four machine, Albert was on it.
Q. Who is Albert?
A. Mike Bethany. I walked back there where
they were and I noticed on the number two ma-
chine Roxanne Sellers and Wanda, I believe, were
on the number two machine. I knew that neither of
those were operators so I walked over there where
they were and I had already got kind of nervous
myself then, I was trying to see that Wanda and
them got it purged out right since they were going
to purge it. I walked back over to where Mike
Bethany was and I told Mike, I said Mike, this ma-
chine's got some hangups in it, I said if you're going
to purge it out, go ahead and tear it down to where
we'll get-and he did. Then I told the same thing to
Tatum, which he did. Then I walked over on the
other side and looked and seen those were purged
out. I come back by Mike and went on in to the
office and called Scott Dickson.
Excerpts From Biddle's Testimony
Q. Okay. He asked you if you would disassemble
them?
A. Right.
Q. What did y'all say?
A. We told him we'd be happy to. We wanted to
do everything the right way so we went on to start
disassembling them and everything and he stayed
around back where we was at talking to everybody
and he went up front and he came back and he
asked Wanda Phillips for a cigarette, she was help-
ing on the machine I was taking apart at the time.
He said y'all are going to have to hurry up, he said
I'll give you a little bit more time, but he said
you're going to have to hurry up, I've got to go
call Fred and Scott. So we went ahead with what
we was doing. We had all the machines disassem-
bled except one when Scott come in.
The above referred to telephone call from Holly to
Plant Engineer Dickson occurred around 12:20 a.m.
Dickson then made a telephone call to Plant Manager
Bradley. Following this, Dickson left for the plant and
arrived there approximately around 12:40 a.m. Around
this time or shortly thereafter, Plant Manager Bradley
arrived at the plant.
Around the time of Bradley's arrival, Dickson had in-
dicated to Holly that he could not talk to the group, to
get some spokesmen. Holly had asked Dickson if one per
shift would be enough. Dickson had indicated that this
would be fine. About this time, Bradley arrived at the
plant, spoke to Holly, and indicated that there should be
a meeting in the conference room. Holly then told the
employees that they needed a spokesman from each shift,
that Scott (Dickson) said he could not talk to "this
group," that Bradley said he would meet with one
person off each shift, and that the employees should
decide who they wanted to meet with Bradley and Dick-
son in the conference room. The employees selected
Biddle, Kennedy, Tatum, and Bethany as spokesmen for
the four shifts.
Plant Manager Bradley, Plant Engineer Dickson, Su-
pervisor Holly, and employees Biddle, Kennedy, Tatum,
and Bethany met in the plant's conference room. Dick-
son asked the employees to tell him what their problems
were. Biddle commenced reading from a list of griev-
ances which the employees had prepared in the nature of
a petition and to which employees had affixed their sig-
natures. The facts are clear that Biddle in effect covered
the grievances as set forth on the list in his presentation.
Biddle and the employees expanded on the grievances.
As an example, one of the grievances set forth was "Dis-
ciplinary policy has done been broken. We would like to
know why." As to this grievance, the employees dis-
cussed the firing of Jester as is revealed by the following
credited excerpts from Biddle's testimony.
Q. What was the discussion?
A. We asked them why they had fired Billy
Jester, we felt they had unjustly fired him. As far as
we knew they hadn't given any reason for letting
him go and Scott Dickson asked us if we'd like to
have him hired back and we said yes, we would. He
thought for a minute and said well, there is no way
we can hire him back, that's all there is to it.
At one point in the meeting, Dickson asked the em-
ployees if they were thinking about unionizing. The em-
ployees told Dickson that they knew the union man's
telephone number.
Dickson remarked at the end of the meeting that if this
were all to be discussed that he guessed the employees
could go home. Bradley then apparently indicated that
the meeting was over, that employees should go home
except for two employees who should stay for cleanup.
Dickson asked the employees to go around and check to
make sure that everything had been turned off properly.
Biddle and perhaps others went and turned off two
chillers which had not been turned off. Dickson also
checked the equipment and found a chiller, located out-
side the building, which had not been turned off.2 t The
other employees left the premises.
Although there was discussion about the referred-to
grievances, Dickson's and Bradley's ultimate response
appears to be that they would try to satisfy their com-
plaints and work with them. Both Dickson and Holly in-
dicated to the employees that they were using the wrong
21 Respondent's argument as to employee responsibility or misconduct
appears o go in two directions. First, Respondent argues that employees
engaged in misconduct by turning off several machines. Secondly. Re-
spondent appears to argue that there was misconduct in not turning off
the outside chiller. The evidence reveals that overall responsibility for
turning off equipment rests with the shift supervisor. It is clear that the
evidence does not reveal that employees engaged in sabotage of equip-
ment or intentionally failed to turn off the "outside chiller " Whether this
equipment was defective or became defective as a result of not being
turned off is not clear
CAN-TEX INDSTRIE
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way to present their grievances. Dickson and Holly in-
quired as to whether the employees would go back to
work if they could get someone from Mineral Wells to
talk to them within a week. Several of the operators ap-
peared interested in such a proposal. After discussion
among the operators, the operators decided not to start
the machines back up. 22
The next morning Bethany, Tatum, Kennedy, and
Biddle went to the plant around 9 a.m. and spoke to
Plant Manager Bradley. What occurred is revealed by
the following excerpts from Biddle's credited testimony.
We asked him if he'd heard anything from Miner-
al Wells and he said well, the only thing I can tell
you is they told me not to talk to you people be-
cause they was afraid I'd muddy the water some
more.
Q. Then what happened?
A. We turned and left and went home.
The overall facts reveal that Respondent's manage-
ment had discussions and decided to fire those whom it
had reason to believe had participated in actually phys-
ically and personally turning off equipment. The overall
facts reveal a reasonable basis for Respondent's belief
that Bethany, Biddle, Goza, Kennedy, and Tatum had
physically and personally turned off running equipment.
Further, the facts support a finding, and I so find, that
Respondent believed that Bethany, Biddle, Goza, Kenne-
dy, and Tatum had physically and personally turned off
running equipment, and that Respondent decided to fire
such employees for such reason.2 3
Later that day, certain of Respondent's supervisors
telephoned Biddle and Kennedy, and apparently Betha-
ny, Goza, and Tatum, and told them that they were
fired. Supervisors told Biddle and Kennedy, and appar-
ently Bethany, Goza, and Tatum, that the supervisors
had not been told why the employees had been fired.
Around September 11, 1979, Biddle and Kennedy
went to the plant to pick up their checks. At such time
Biddle and Kennedy inquired of Plant Engineer Dickson
as to why they had been discharged. Dickson told them
that he would talk to them one at a time. Dickson then
took them separately into his office and showed them
separately the following notice.
NOTICE TO ALL EMPLOYEES
Following the unauthorized plant shut down at
the beginning of the mid-nite to 8:00 a.m. shift on
9/10/79 the Company has taken the following
action. M. Bethany, N. Biddle, B. Goza, J. Kennedy
and B. R. Tatum have been discharged for inciting
and participating in the unauthorized plant shut
down. These persons are the only known persons
22 It is clear that the employees in early July 1979 had sought to have
someone from Mineral Wells, Texas, come and talk to them and had been
promised by Oger that someone would come, and that no one had then
come from Mineral Wells. It is also clear that written grievances had not
been previously given to the Employer. Further, the facts indicate that
Respondent had a local employer-employee committee relationship
wherein grievances could be tendered.
23 No evidence was presented to reveal that such employees did not
physically or personally turn off running equipment.
present at the time of the unauthorized plant shut
down with the necessary skills to shut the machines
down.
Shift Supervisors have called all remaining mem-
bers of their crews notifying them to return to work
beginning at 8:00 a.m. 9/11/79. Those not returning
as notified will be considered to have voluntarily
quit.
Any subsequent interruptions of any work sched-
ules will result in the discharge of all participants in
these actions.
On or about September 12, 1979, other employees re-
turned to report to work. At such time Dickson ques-
tioned the employees and solicited them to complete a
questionnaire as set out below.
September 11, 1979
I, , do hereby testify that the following
person(s) ask [sic] for my support in the
unauthorized plant shut down on 9/10/79. There
was (was not) coercion involved in this request
made by the above mentioned person(s).
I did (did not) participate in the actual shut down
of any Can-Tex equipment.
The above information is correct in its entirety.
Signed:
What occurred in Dickson's interviews with employees
is revealed by the following credited excerpts from
Dickson's testimony.2 4
I invited them into my office individually one at the
time. I explained to them why I had them in there,
I told-I had the piece of paper that you just had
me identify. They did not have to sign that piece of
paper or put any information on it whatsoever and
the only thing I was trying to determine was
whether or not they had actually participated in a
hands-on type situation whereby they were in-
volved in shutting company equipment down with-
out authorization. I told them I would take their
word for it. If they said they were not involved,
then they were not involved. If they said they were
involved, I would have to discharge them.
It was pretty much consistent for each one of them.
Of course each employee is going to bring out dif-
ferent things so I'm sure there were some variations
in what was said, but basically my side of it was
that when they first came in I explained to them
why they were there because I didn't want them to
have any misgivings about what might possibly
happen to them. And I told them that if they ad-
mitted to actually participating in that plant shut-
down, then I was going to have to terminate their
24 Jones testified credibly that he was asked whether he had participat-
ed in the shutdown and that he was asked to sign the questionnaire
which he did.
CAN-TEX INDUSTRIES 875
employment. On the other hand, if they said they
weren't involved in it, I was going to take their
word for that too. I had the document which the
young lady had earlier that we went over and what
I was trying to do there and what I told them was
this is as much for your protection as anything else
because if you tell me that you didn't participate in
it and then you put your name on this, this docu-
ment can't do anything except support you. On the
other hand, you don't have to write anything on it
at all, you don't have to put your name or anything
and if you tell me you weren't involved in it, you
still don't have to sign it if you don't want to. Some
employees signed it. By far the vast majority of the
ones who said they did not participate in it did sign
it. Most of the ones that said they did participate
did not sign it. There were some blanks on the doc-
ument and what I was trying to do there was I was
really trying to find out if any of these people that
didn't actually participate in it, or for that matter
some of the ones that might have actually partici-
pated, had actually been coerced into doing it be-
cause had they actually been forced with a threat of
bodily injury or something, hey, you're going to do
it or else we're going to go out and beat your kids
up and rape your wife, you know, that might
change the picture a little bit.
Q. Do you recall if any employees filled in the
blank stating-
A. There were I believe at least two employees
that did voluntarily put someone's name in the
blank. Now there were no circling-there was no
one that actually circle the comment about yes I
was coerced. No one said they were coerced or
anything like that. There was a blank in there con-
cerning if they wanted to give the name of the
person that asked them to participate, they could
put their name and there were two individuals I be-
lieve that did that.
The litigation of this case reveals the usage of much
imprecise and loose language by the parties. Thus, refer-
ences were made to shutdown without setting forth
whether shutdown meant reference to simply striking or
to turning off equipment. Similarly, references were
made to unauthorized shutdown without setting forth
whether such had bearing on an unauthorized ceasing to
work or an unauthorized turning off of equipment. Fur-
ther, references were made to "participation" in an unau-
thorized shutdown without setting forth in every in-
stance whether participation meant merely striking activ-
ity or participation in the actual physical turning off of
equipment. Considering the language in the September
11, 1979, questionnaire and Dickson's credited testimony,
the overall facts reveal that Dickson's questioning and
the questionnaire were designed to ascertain those who
admitted to physically and personally shutting down
equipment. Thus, I conclude and find that Respondent,
at the time it discharged Darvin Jones, Wanda Phillips,
David Wakeland, Ricky Mason, Cynthia Sellers, Randy
Whatley, Jeff Spence, and Mildred Morgan had a reason-
able basis of belief that such employees had been in-
volved physically and personally in the actual shutting
down of running equipment on September 10, 1979. 1
further conclude and find that Respondent discharged
the above-referred-to employees on September 12, 13,
and 14, 1979, because it believed such employees had
personally and physically turned off running equipment
on September 10, 1979. No evidence was presented to
reveal that such employees had not engaged in such con-
duct.
Contentions and Conclusions
I. The General Counsel contends and alleges and Re-
spondent denies that "on or about September 10, 1979,
certain employees of Respondent, employed at Respond-
ent's facility, ceased work concertedly and engaged in a
strike," and that the said strike was caused by the unfair
labor practices alleged to have occurred before Septem-
ber 10, 1979.
Considering the facts in totality, the facts clearly estab-
lish that the employees on September 10, 1979, ceased
work concertedly and engaged in a strike. The major
issue presented in this case is whether the employees'
turning off running machinery constituted unprotected
activity. As set forth later, it is found that such conduct
constituted protected concerted activity and not unpro-
tected activity.
Further, the facts reveal that part of the employees'
reasons for striking on September 10, 1979, was to pro-
test the unfair labor practice discharge of Jester. Except-
ing as to the unfair labor practice discharge of Jester, I
find no evidence that other unfair labor practices consti-
tuted a part of the employees' reasons for striking on
September 10, 1979.
2. The General Counsel contends and alleges and Re-
spondent admits that Respondent (a) on September 11,
1979, discharged Norman Biddle, Bill Goza, Billy Ray
Tatum, James Kennedy, and George Michael Bethany,
(b) on September 12, 1979, discharged Darvin Jones,
Wanda Phillips, David Wakeland, and Ricky Mason, (c)
on September 13, 1979, discharged Cynthia Sellers,
Randy Whatley, and Jeff Spence, and (d) on September
14, 1979, discharged Mildred Morgan
The General Counsel alleges and Respondent denies
that Respondent discharged the above-referred-to em-
ployees because they had engaged in ceasing work con-
certedly and in striking, in order to discourage employ-
ees from engaging in such activities or other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection.
It is clear that the cessation of work for the purpose of
presenting grievances for meaningful disposition consti-
tutes protected concerted activity. The only real issue is
whether the employees' turning off Respondent's running
equipment rendered such employee conduct to be unpro-
tected conduct for which Respondent could discharge
such employees without violating the National Labor
Relations Act. It appears that the General Counsel has
litigated the question of whether the strike was caused
by unfair labor practices as added justification for the
employees' turning off the machinery. In my opinion, if
the turning off of the running equipment constituted un-
CAN-TEX INDUSTRIES
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protected conduct, the totality of the preexisting unfair
labor practices by Respondent would not be sufficient to
justify unprotected conduct.
The real issue is whether the employees' action in
turning off machinery rendered their concerted action in
striking to be unprotected. The parties have argued
many cases which have been considered.
Respondent argues that the employees' turning off the
running equipment constituted a "taking over" of Re-
spondent's plant. It appears in effect that Respondent in-
cludes in such argument a contention that the employees
usurped management's option of continuing to operate
such equipment whether or not the employees ceased
working.
The overall facts and testimony clearly reveal the
danger of foreseeable imminent damage to Respondent's
equipment had the employees simply walked off and left
the equipment running. Dickson's testimony at one point
seemingly indicated that the equipment was automatic
and would continue to run without employees. However,
his testimony revealed that when the pipe racks were full
that there would be a hangup and possible breakage of a
saw. Further, Dickson testified that good pipe would
continue to be made even if the saw were broken. Such
testimony seems to suggest that pipe would continue to
be extruded without setting forth where the pipe would
go. It appears reasonable to believe that when the pipe
rack became loaded that the end of the pipe would
become jammed and it would appear that damage would
result to the equipment. Further, the testimony as to the
processing of pipe indicates a need to monitor controls,
that if such were not done that heat damage and related
damage could occur to the equipment.
Considering the above, it is reasonable to believe that
employees' failure to turn the equipment off could have
rendered their concerted activity to be unprotected. The
employees' turning off of the equipment does not reveal
a flagrant disregard for Respondent's property or rights
but rather a proper concern as to the protection of such
rights. 25 Further, the facts reveal that Respondent's su-
pervision had an ample awareness of the upcoming shut-
down and did nothing to indicate that Respondent
wanted the machines to keep running if the employees
concertedly struck. Supervisor Holly was present and
did not tell employees that they should leave the ma-
chines running when they ceased working. Rather, Holly
indicated that he was cooperating by not calling his
higher-ups at that time. Under such circumstances, the
employees' conduct in ceasing work and turning off of
the running machinery clearly constituted protected con-
certed activity.
Considering the foregoing, I am persuaded that the
fundamental principles set forth in Marshall Car Wheel
and Foundry Co. of Marshall, Texas, 107 NLRB 314
(1953),26 require a finding that the employees' actions in
2 Biddle credibly testified to the effect that the employees turned the
machinery off so as to avoid damage to the equipment
z2 See also N.L.R.B. v Marshall Car Wheel and Foundry Co. of Mar-
shall, Texas, Inc., 218 F.2d 409 (5th Cir. 1956), and Marshall Car Wheel
and Foundry Co. of Marshall. Texas, 115 NLRB 7 (1956). See also Henne-
pin Broadcasting Associates, Inc., 225 NLRB 486, 496, 497 (1976).
shutting off machinery did not change their concerted
activity from a protected status to that of an unprotected
status. Thus, in Marshall the Board said:
In cases involving supervisory and plant protec-
tion employees, the Board has recognized the valid-
ity of the general principle that the right of certain
classes of employees to engage in concerted activity
is limited by the duty to take reasonable precautions
to protect the employer's physical plant from such
imminent damage as forseeably would result from
their sudden cessation of work. We are of the opin-
ion that this duty extends as well to ordinary rank-
and-file employees whose work tasks are such as to
involve responsibility for the property which might
be damaged. Employees who strike in breach of
such obligation engage in unprotected activity for
which they may be discharged or subjected to other
forms of discipline affecting their employment con-
ditions.
Accordingly, the sum of the facts reveals that the em-
ployees referred to above as being discharged on Sep-
tember 11, 12, 13, and 14, 1979, engaged in protected
concerted activity of ceasing work and striking on Sep-
tember 10, 1979, and were discharged because of having
engaged in such protected concerted activities. By the
discharge of such employees, Respondent engaged in
conduct violative of Section 8(a)(l) of the Act. 27
3. The General Counsel contends and alleges and Re-
spondent denies that Respondent "on or about Septem-
ber 10, 1979, interrogated its employees about their union
activities, membership and sympathies."
The facts are clear that Dickson asked Biddle and the
other employee spokesmen on the morning of September
10, 1979, whether they were thinking about unionizing.
In the context of the meeting to discuss grievances and
the reasons for the shutdown and in the absence of evi-
dence to reveal a legitimate basis for such inquiry or as-
surances of nonreprisals, such questioning must be found
to be coercive and violative of Section 8(a)(l) of the
Act.
4. The General Counsel alleges and contends and Re-
spondent denies that the "Notice to Employees" dated
September 11, 1979, and referring to the discharges of
Bethany, Biddle, Goza, Kennedy, and Tatum, constituted
a threat of discharge of employees violative of Section
8(a)(l) of the Act.
The facts reveal that the referred-to discharged em-
ployees and other employees had engaged in protected
concerted activity on September 10, 1979, when the em-
ployees ceased work and turned off machinery. The
notice was posted by the Employer and constituted a
message to employees that such named employees had
been discharged because of the employees having en-
27 The case of Mal Landfill Corporation, 210 NLRB 167 (1974), is dis-
tinguishable from the facts in Marshall and in the instant case. In Mal
Landfill, the employees who were discharged had closed the gates to the
landfill. Such employees were not taking steps to prevent damage to
equipment, rather such employees were simply causing the employer, and
other employees to not engage in the employer's work and to prevent
customers from entering the premises Such facts are distinguishable from
acts undertaken to minimize possibility of damage to equipment.
CAN-TEX INDUSTRIES 877
gaged in protected concerted activity, that employees
who did not cease from their concerted activity of cessa-
tion of work would be considered to have voluntarily
quit, and that any subsequent recurrence of such protect-
ed concerted activity would result in discharge. It is
clear that such notice constituted a threat that employees
would be discharged for engaging in protected concerted
activity as had occurred on September 10, 1979. Such
threat clearly constitutes conduct violative of Section
8(a)(1) of the Act. It is so concluded and found.
5. The General Counsel alleges and contends and Re-
spondent in effect admits that Respondent, by Dickson,
beginning on or about September 12, 1979, interrogated
its employees about their participation and the participa-
tion of their fellow employees in the concerted cessation
of work on September 10, 1979. The General Counsel
contends that such interrogation was unlawful in that it
inquired about the employees' participation in protected
concerted activities. Respondent contends that the em-
ployee cessation of work on September 10, 1979, was un-
protected.
It has already been found that the employees engaged
in protected concerted activity on September 10, 1979,
when the employees concertedly ceased work. This
being so, it is clear that Respondent, insofar as a conten-
tion of legitimate interest, acted at its peril in its interro-
gation of employees about their protected concerted ac-
tivity. Further, Respondent's statement that it would take
employees at their word as to whether they had phys-
ically turned off equipment does not eliminate the possi-
bility of other reprisals even if Respondent had been free
to discharge employees for physically turning machines
off. It is clear that employee actions in turning the ma-
chines off did not render their protected concerted activ-
ity as unprotected. Thus, Respondent by its statements
failed to assure employees that there would not be repri-
sals concerning their answers about their and others' en-
gagement in protected concerted activities. Accordingly,
it is found that the Respondent's questioning of employ-
ees about their and others' engagement in the concerted
cessation of work on September 10, 1979, constituted
conduct violative of Section 8(a)(l) of the Act.
J. Events-Early October 1979 and Promise of
Benefits
The General Counsel's complaint alleged and Re-
spondent's answer denied that Respondent, by Dickson,
in early October, promised its employees better benefits
by telling its employees that there would be a raise in
February 1980, depending on how the union election
came out.
The General Counsel presented Scott Dickson, a
former supervisor and employee of Respondent and the
agent alleged to have made the referred-to promise of
benefits, as the initial witness in this case.
Dickson testified to the effect that he had numerous
conversations with employees about raises, that if a state-
ment were made about a raise in February that such was
based on the past history of the plant, and that reference
would have been to a typical raise of a cost-of-living
type in accordance with governmental guidelines. Dick-
son's testimony was also to the effect that it was his un-
derstanding that he and others were told that Can-Tex
would look at and evaluate the raise situation in January
or February.
The General Counsel's principal witness on this issue
was Burdine. Burdine credibly testified to the effect that
in the middle of October 1979 Dickson had a conversa-
tion with him. As to the specifics, Burdine testified as is
revealed by the following excerpt from his testimony.
Q. Can you tell us please what was said during
that conversation.
A. That in a year or two I might be looking at a
salaried job, first of the year was looking at a seven
or eight percent raise, depending on how the union
come out.
The General Counsel then followed up with questions
as to whether the foregoing was exactly what Dickson
had said. Burdine's further testimony was to the effect
that such was close to what was said. Burdine again tes-
tified in conclusionary fashion as to what was said. The
General Counsel with a leading question then elicited
that Burdine had testified to Dickson's exact words.
Respondent's cross-examination of Burdine completely
destroyed the implication that a promise of benefit had
been made. Such examination is as revealed by the fol-
lowing excerpts from the record.
Q. Mr. Burdine, this conversation that you had
with Scott Dickson, did he in any way tell you, as
you testified, Mr. Dickson told you you were look-
ing in a year or two to become a salaried man, did
he say in any way that that was going to be condi-
tioned upon a union coming into the plant or stay-
ing out?
A. No.
Q. Did he state that would be conditioned in any
way upon how you voted in the union election?
A. No.
Q. The raise that he was talking about, he said
seven percent, do you know where he got that
figure, seven percent?
A. Out of the air, you know, just an average.
Q. He didn't say anything to the effect that Can-
Tex is going to comply with the Presidential guide-
lines and that the raise will be in February and it'll
be seven percent. Do you recall any of that?
A. No.
Q. You don't recall any discussion about the
Presidential guidelines?
A. About the raise?
Q. Yes.
A. Yeah, we talked about it.
Q. Okay. Did he in any way state that you may
not get the raise in February if the union were to
come into the plant?
A. No he did not.
Q. Did he in any way state that the raise would
be delayed if the union came into the plant?
A. No.
CAN-TEX INDUSTRIES
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following Respondent's cross-examination, the Gener-
al Counsel's attempt at rehabilitation of Burdine was lim-
ited to a leading question to which Burdine simply an-
swered yes.
Conclusion
The testimony of Dickson has little value except to in-
dicate that a conversation about raises could have oc-
curred, that reference to a raise in February could have
been made, and that there was a possibility that refer-
ences had been made to governmental guidelines.
Burdine's testimony on direct examination appeared to
be conclusionary. Respondent's cross-examination of
Burdine completely destroyed the value of the direct ex-
amination as establishment that a "promise of benefit"
had been made. The General Counsel's attempt at reha-
bilitation of Burdine by leading questions elicited an
answer of such weak weight that it must be said that
Burdine's answers on cross-examination must be credited.
In sum, the facts fail to reveal credited evidence to estab-
lish the "promise of benefit" as alleged.
K. The Fact Sheet-November 13, 1979
The facts clearly establish that Respondent posted at
its plant on or about November 13, 1979, a "Fact Sheet
& Answers" as is revealed by the following:
November 13, 1979
CAN*TEX
FACTSHEET & ANSWERS
QUESTION: Will we have strikes if the union
gets in?
ANSWER: We cannot say for sure, but we do
know that there has never been a strike at any of
our plants where there is no union. This means that
with a union there is a strong possibility of a strike.
WHAT YOU SHOULD KNOW ABOUT
STRIKES:
-Striking workers receive no paychecks.
-By state law, strikers receive no unemployment
money.
-Strikers can lose their jobs to new hire replace-
ments.
-Strike benefits paid by the union are very small
& in no way make up for lost pay.
-Strikes can often result in violence, threats and
personal harm, leaving bitterness and personal
scars.
* * * . *
4 OUT OF 5
AMERICAN WORKERS
DO NOT BELONG TO ANY UNION
THEY HAVE NOT BEEN FOOLED
BY EMPTY UNION PROMISES
VOTE NO
[X]
Contentions and Conclusions
The General Counsel contends and Respondent denies
that Respondent, by posting the above-referred-to "Fact-
sheet & Answers," threatened its employees with loss of
jobs if the Union were selected as the employees' collec-
tive-bargaining representative.
Considering the "Factsheet & Answers," I find no evi-
dence to reveal that Respondent communicated that
strikes were inevitable or that in such regard that em-
ployees were threatened with loss of jobs if the Union
were selected as the employees' collective-bargaining
representative. Accordingly, the facts fail to establish
that Respondent has violated Section 8(a)(l) of the Act
by such alleged threat of loss of jobs. It is therefore rec-
ommended that the complaint allegation of unlawful con-
duct by such alleged threat be dismissed.
L. Events-Circa November 15, 1979-Supervisor
Teddy Lee
The facts are clear that on or around November 15,
1979, the day before a scheduled NLRB representation
election, Supervisor Teddy Lee spoke to several employ-
ees about the Union. Two of such employees were Mark
Shapley and Charles Jackson.
I credit the testimony of Shapley to the effect that Lee
interrogated him as to what he thought about the Union.
I similarly credit the testimony of Jackson to the effect
that Lee interrogated him as to what he thought about
the Union. 2 8
Jackson credibly testified to the effect that Lee told
him that breaks would be shorter if the Union came in.2 9
Jackson further testified that Lee spoke to him about a
raise as is revealed by the following excerpts from his
testimony.
Q. Was there any discussion about wages?
A. Yes, about-I think he mentioned we were
going to get a raise in February.
Q. What exactly do you remember him saying
about the raise?
A. Well he told me, he assured me we were
going to get a raise in February.
Q. Now you say he assured you, how did he
assure you, what did he say?
A. He said we're going to get a raise. I might
have asked about it. I'm pretty sure I did.
28 Lee in his testimony does not really deny that he asked the employ-
ees as to what the employees thought about the Union.
11 Lee testified ti) the effect that he told the employees that it was pos-
sible that breaks would be shorter if the Union came in Jackson's testi-
niony was specific as compared to Lee's recital of what he told employ-
ees in general I find Jackson's testimony more reliable and credit it over
Lee's where in conflict.
CAN-TEX INDUSTRIES 879
Lee testified concerning the question of raises as is re-
vealed by the following excerpts from his testimony.
Q. Did you tell Charles Jackson or another em-
ployee that they would get a raise in February?
A. No, I did not. I told them that in the past in
the seven years that I've worked there, that every
year either in January or February we have re-
ceived one.
Considering the unsureness of Jackson's testimony as
to the discussion of raises, I find Lee's testimony as to
the discussion of raises more reliable. I credit Lee's ver-
sion of facts relating to the discussion of raises over that
of Jackson's.
Considering all of the foregoing, I conclude and find
that Respondent, by Lee, on or about November 15,
1979, interrogated employees about their union beliefs.
The facts do not reveal a legitimate need for such inter-
rogation. Nor do the facts reveal that assurances of non-
reprisal were given such employees in connection with
such interrogation. Accordingly, such interrogation was
coercive and violative of Section 8(a)(1) of the Act. It is
so concluded and found.
Further, the credited facts reveal that Lee told em-
ployee Jackson that the breaks would be shorter if the
Union came in. Such conduct clearly constituted a threat
of less desirable working conditions to be imposed if the
employees selected a union. Such conduct is clearly vio-
lative of Section 8(a)(1) of the Act. It is so concluded
and found.
As to the discussion of raises, the statements merely
reflected practice and did not constitute a promise of
better benefits to be derived from rejection of the Union.
Accordingly, the allegation of conduct violative of the
Act in such regard will be recommended to be dismissed.
IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section 1, above, have a close, inti-
mate, and substantial relationship 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 Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that Respondent discharged Billy
Jester, Norman Biddle, Bill Goza, Billy Ray Tatum,
James Kennedy, George Michael Bethany, Darvin Jones,
Wanda Phillips, David Wakeland, Ricky Mason, Cynthia
Sellers, Randy Whatley, Jeff Spence, and Mildred
Morgan in violation of Section 8(a)(l) of the Act, the
recommended Order will provide that Respondent offer
each reinstatement to each's job, and make each whole
for loss of earnings or other benefits within the meaning
and in accord with the Board's decisions in F. W. Wool-
worth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), except as specifically
modified by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in
the exercise of the rights guaranteed them by Section 7
of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCI.USIONS OF LAW
1. Can-Tex Industries, Division of Harsco Corpora-
tion, the Respondent, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. UBC, Southern Council of Industrial Workers,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discharging Billy Jester, Norman Biddle, Bill
Goza, Billy Ray Tatum, James Kennedy, George Mi-
chael Bethany, Darvin Jones, Wanda Phillips, David
Wakeland, Ricky Mason, Cynthia Sellers, Randy What-
ley, Jeff Spence, and Mildred Morgan, Respondent has
interfered with, restrained, and coerced employees be-
cause of their engagement in protected concerted activi-
ties and thereby has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
4. By the foregoing and by interfering with, restrain-
ing, and coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act, Respond-
ent engaged in unfair labor practices proscribed by Sec-
tion 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3 0
The Respondent, Can-Tex Industries, Division of
Harsco Corporation, Magnolia, Arknsas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment because of their
engagement in protected concerted activities.
(b) Threatening employees with discharge, less desir-
able working conditions and other reprisals because of
their engagement in union or protected concerted activi-
ties.
3' In the event no exceptions are filed as provided h Sec 102 4 of
the Rules and Regulations of the National ahor Relations Board, the
findilngs, conclusions. and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulirtons, he adopted bh the Board and
hecome its findings. conclusions, and Order. and all ohiections thereto
shall h deemed x.aived for all purposes
CAN-TEX INDUSTRIES 79
. _ _ _ _ _
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Promising better or increased benefits, terms, or
conditions of employment in order to dissuade employees
from selecting a union or engaging in other protected
concerted activity.
(d) Coercively interrogating employees about their or
others' union activities, desires, or beliefs, or about their
engagement in protected concerted activities.
(e) Maintaining any rule which prohibits employees
from engaging in union solicitation during their non-
working time or which prohibits employees from distrib-
uting union literature during their nonworking time in
nonworking areas of the plant premises.
(f) Soliciting grievances in such a manner as to consti-
tute an implied promise of benefits in order to dissuade
employees from selecting a union or engaging in other
protected concerted activities.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act except to the extent
that such rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Billy Jester, Norman Biddle, Bill Goza,
Billy Ray Tatum, James Kennedy, George Michael
Bethany, Darvin Jones, Wanda Phillips, David Wake-
land, Ricky Mason, Cynthia Sellers, Randy Whatley, Jeff
Spence, and Mildred Morgan immediate and full rein-
statement to each's former position or, if such position
no longer exists, to a substantially equivalent position,
without prejudice to each's seniority, or other rights pre-
viously enjoyed, and make each whole for any loss of
pay or other benefits suffered by reason of the discrimi-
nation against each in the manner described above in the
section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at Respondent's plant at Magnolia, Arkansas,
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by Re-
spondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Re-
spondent for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
.' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.'
IT IS FURTHER ORDERED that the allegations of unlaw-
ful conduct not specifically found to be violative herein
be dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against employees in regard to hire or tenure
of employment, or any term or condition of em-
ployment because of their engagement in protected
concerted activities.
WE WILL NOT threaten employees with dis-
charge, less desirable working conditions, or other
reprisals because of their engagement in union activ-
ities or protected concerted activities.
WE WILL NOT promise better or increased bene-
fits, terms, and conditions of employment in order
to dissuade employees from selecting a union or en-
gaging in protected concerted activities.
We will not coercively interrogate our employees
about their or others' union activities, desires, or be-
liefs or about their engagement in protected con-
certed activities.
WE WI.L NOT maintain any rule which prohibits
our employees from engaging in union solicitation
during their nonworking time or which prohibits
our employees from distributing union literature
during their nonworking time in nonworking areas
of our plant premises.
WE WIl.l. NOT solicit grievances in such a manner
as to constitute an implied promise of benefits in
order to dissuade employees from selecting a union
or engaging in other protected concerted activities.
WE WIt.L NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
Act except to the extent that such rights may be af-
fected by lawful agreements in accordance with
Section 8(a)(3) of the Act.
WE WILL offer to Billy Jester, Norman Biddle,
Bill Goza, Billy Ray Tatum, James Kennedy,
George Michael Bethany, Darvin Jones, Wanda
Phillips, David Wakeland, Ricky Mason, Cynthia
Sellers, Randy Whatley, Jeff Spence, and Mildred
Morgan immediate and full reinstatement to each's
former position or, if such position no longer exists,
to a substantially equivalent position, without preju-
dice to each's seniority or other rights previously
enjoyed, and make each whole for any loss of pay
or other benefits suffered by reason of the discrimi-
nation against each.
CAN-TEX INDUSTRIES, DIVISION OF
HARSCO CORPORATION