Certain-Teed Products Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1517 (N.L.R.B. 1964)

CERTAIN-TEED PRODUCTS CORPORATION 1517
places where notices toy employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify said Regional' Director, in writing, within 20 days, from the date, of
the receipt of this Intermediate Report and Recommended Order, what steps it has
taken to comply herewith .6
6 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local Union 2577, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive
representative of all our employees in the appropriate unit with respect to the
establishment of a second-shift operation, premium shift pay, and related
matters.
WE WILL NOT institute changes in the terms and conditions of employment in
the appropriate unit, such as the establishment of a second shift and the granting
of premium shift rates, without first consulting with and bargaining with the
above Union as the exclusive representative of such employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed in Section 7 of the Act.
WE WILL, upon request, bargain collectively with Local Union 2577, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive
representative of all our employees in the following bargaining unit, with respect
to the institution of a second-shift operation, premium shift rates, and related
matters, and, if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees, including plant clerical em-
ployees, truckdrivers, leadmen, and part-time janitress, at the Salem,
Indiana, plant, excluding main office employees, watchmen, foremen, and
supervisors as defined in the Act.
SMITH CABINET MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614
ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone No Mel-
rose 3-8921, if they have questions concerning this notice or compliance with its
provisions.
Certain-Teed Products Corporation and United Stone and Allied
Products Workers of America , AFL-CIO. Cases Nos. 16-CA-
1819, 16-CA-1864, and 16-CA-1905. June 30, 1964
DECISION AND ORDER
On February 14, 1964, Trial Examiner Reeves R. Hilton issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
147 NLRB No. 160.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. The Trial
Examiner also found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended dismissal of these allegations. Thereafter, the General Coun-
sel and Respondent filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.
1. The Trial Examiner found, and we agree, that Respondent did
not violate Section 8(a) (3) and (4) of the Act by-terminating and
thereafter refusing to reinstate employees Hopgood and Guthrie, and
by refusing to reinstate employee Worley.
2. We also agree with the -Trial Examiner that Respondent, by
initiating, forming, and dominating a Suggestion Committee, violated
Section 8 (a) (2) of the Act.
3. The Trial Examiner recommended that the allegations in the
complaint that Respondent violated Section 8 (a) (1) of the Act be
dismissed. We disagree. We find rather that the following conduct
of Respondent constituted interference, restraint, and coercion of em-
ployees in violation of Section 8 (a) (1) of the Act : I
(a) In October 1962, Supervisor Anderson told employee Hopgood,
who had acted as a union observer in an election held in July 1961,
t he could not understand why anyone so opposed to unions as
Hopgood was when he was hired would ever change his mind. When
Hopgood complained that mechanics were performing machine work
while he was doing mechanic's work, which was costly to Respond-
ent and unfair to Hopgood and the mechanics, Anderson told Hop-
good, "You couldn't have everything your own way, and that if [Hop-
good] didn't like the job why didn't [Hopgood] quit." Hopgood
responded, "I didn't quit [sic] unless I have a good reason." The con-
versation ended with Anderson saying, "Why didn't we let all this
union talk die down."
1 We base these findings upon the facts as found by the Trial Examiner in his Decision
and upon uncontradicted testimony in the record.
CERTAIN-TEED PRODUCTS CORPORATION 1519
(b) In late November 1962, Langford, Respondent's personnel
manager, asked employee Sulak if he was satisfied with his job and
then requested that Sulak help Respondent against the Union. Sulak
replied that he had not had any overtime since the union organizer
had left and "that I [Sulak] had turned nine votes against the Union
the last time and that I wasn't going to work either way."
(c) On the evening of June 4, 1963, Langford stated to employee
Slovak that he thought Slovak would be at the union meeting which
Langford believed was being held that night. Slovak answered that
no union meeting was being held that night, although he had heard
rumors to that effect, and that someone was "just pulling your leg."
(d) On June 5, Langford asked Sulak if he had had a good time
the night before and further stated that he was referring to the union
meeting, adding, "You'd be surprised who told me."
(e) On the same day, Langford cautioned Sulak not to circulate
union cards, or any kind of cards, at the plant, thereby prohibiting
him from soliciting for the Union at Respondent's plant during non-
working time as well as during working time 2
(f) On June 6, Supervisor McBrayer stated to Sulak that "if this
place was Union that it [Respondent] had reasons to fire a lot of
guys."
(g) In July 1963, Langford told Sulak that "he had to pinch him-
self that he couldn't believe that it was [Sulak] that testified" at the
first unfair labor practice hearing.
(h) On July 23, 1963, Supervisor Anderson reminded Slovak that
Langford once saved Slovak from being fired, and stated, "and now
you go and testify against him . . . . You ought to have been fired."
(i) On September 10, after Slovak told Anderson that he had been
subpenaed to testify at the reopened hearing, Anderson told him,
"... I still mean what I said before. It goes to show what kind of a
man you are."
(j) On May 5,1963, Langford interrogated Slovak as to whether he
had received a letter from the Union.'
4. We also find, contrary to the Trial Examiner, that the Respond-
ent impeded the Board in the exercise of its authority to investigate
charges of alleged unfair labor practices, in violation of Section 8 (a)
(1) of the Act. The facts, as found by the Trial Examiner, are: (a)
On June 6, 1963, Langford informed employee Slovak that unfair
labor practice charges had been filed against Respondent and that,
2 Stoddard-Quirk Manufacturing Co, 138 NLRB 615.
a The Trial Examiner , who discredited testimony by employee Divin which concerned
alleged coercive statements made to Divin by Supervisor McBrayer , concluded that even
if the alleged statements had been made , they would not have violated the Act As we
find no basis for reversing the Trial Examiner 's credibility resolutions , we find it un-
necessary to decide whether these statements, if made, would have been violative of Sec-
tion 8 (a) (1) of the Act.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if a Board agent attempted to interview Slovak, Slovak did not have
"to volunteer information or give any information only what he asks
you, or if you're subpenaed." (b) Also on June 6, Langford had
separate conversations with employees Johnson and Sulak, telling
them that a representative of the Board might be around to interview
them but they did not have to tell him anything. Langford further
stated that if they did talk to the Board agent they would probably
be subpenaed and be required to testify at a hearing. (c) On June 7,
Langford told employee Divin that a Board representative would
probably be around to see him and "you can tell him anything you
want, or you don't have to tell him anything." (d) Langford ad-
mitted that without being asked he informed about 90 percent of
Respondent's employees that unfair labor practice charges had been
filed against Respondent and that they were not obligated to make
any statements to a Board agent unless and until they were subpenaed
to appear at a hearing. He also admitted that he advised employees
that they could tell the Board agent to "go to the devil, or [go to]
hell."
The Trial Examiner, although characterizing these statements by
Respondent to its employees "as poor if not inaccurate advice," con-
cluded that by this conduct Respondent did not violate Section
8(a) (1). The General Counsel excepted to this finding of the Trial
Examiner and we find merit in his exception. The Board's ability to
secure vindication of rights protected by the Act depends in large
measure upon the ability of its agents to investigate charges fully and
to obtain relevant information and supporting statements from indi-
viduals. It is for this reason that the Board has carefully sought to
protect the integrity of its processes by preventing any obstruction of
Board agents in their investigation of charges.' Here, as noted, Re-
spondent told 90 percent of its employees that they need not cooperate
with Board agents in their investigation. While it may be technically
true that an individual may not be forced to give statements to a
Board agent unless subpenaed, it is clear, and we find, that under the
circumstances in the present case, Respondent's advice was designed
to and would in fact tend to discourage employees from supplying
information to a Board agent and thus to hinder him in investigating
the charges filed in this case against the Respondent.' In reaching
this conclusion, we rely on the facts that Respondent advised virtually
4 See, for example , Winn-Dixie Stores , Inc., et at., 128 NLRB 574 ; W. T. Grant Com-
pany, 144 NLRB 1179. Compare Section 12 of the Act which provides for criminal sanc-
tions for any person impeding or interfering with a Board agent in the performance of
his duties.
5-Winn -Dixie Stores , Inc., et al ., supra, at 579 . We need not decide whether under
other circumstances, not present here, an employer could lawfully advise his employees
that they had a right not to make statements to Board agents.
CERTAIN-TEED PRODUCTS CORPORATION 1521
all of its approximately 100 employees that they need not cooperate
in the Board investigation; that it told several of these employees that
their cooperation would result in their being subpenaed and forced
to testify at a hearing, thus indicating that their cooperation would
involve them more deeply in the litigation ; 6 that Respondent's opinion
regarding the investigation was not solicited by employees, and the
language it utilized was in many instances intemperate ; and that Re-
spondent made other coercive statements to employees which we have
previously found violated Section 8 (a) (1), including statements ex-
pressing disbelief and annoyance at employees who testified at the first
hearing. We find, therefore, that the above-described conduct by
Respondent interfered with the rights of employees to obtain redress
from the Board and thereby violated Section 8 (a) (1) of the Act.'
THE REMEDY
Having found that Respondent has engaged in conduct which inter-
fered with, restrained, and coerced employees in violation of Section
8(a) (1) of the Act, we shall order that Respondent cease and desist
therefrom.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner with the following additions, and
orders that the Respondent, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order as modified herein :
The following paragraph shall be added to paragraph 1 of the
Recommended Order as paragraph (a) and the other paragraphs shall
be renumbered accordingly :
(a) Coercively interrogating employees concerning their union ad-
herence and activities, engaging in surveillance or giving the impres-
sion of surveillance, threatening reprisals against employees for testi-
fying at 'a Board-conducted hearing, prohibiting employees from
engaging in solicitation in connection with union activities during their
nonworking hours, and interfering with the Board's processes by ad-
9 These statements would also have made it clear to employees that Respondent would
know if they assisted in the Board investigation.
7 We do not agree with the reasoning of the Trial Examiner that no violation under
the Act had occurred because the record failed to disclose any specific instances of inter-
ference by Respondent with the investigation of the General Counsel. In determinin'
whether particular conduct violates Section 8 ( a)(1) the Board looks to the tendency of
such conduct rather than to its actual effect in the given case. Joy Silk Mills , Inc. v.
N.L.R.B ., 185 F. 2d 732 at 743-744 (C.A.D . C.), cert. denied 341 U.S. 914.
756-236-65-vol. 147--97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vising employees that they need not give any information to agents of
the National Labor Relations Board, or in any other manner.'
& The following will be inserted as the third full indented paragraph in the notice:
WE WILL NOT coercively interrogate employees concerning their union adherence
and activities , engage in surveillance or give the impression of surveillance , threaten
reprisals against employees for testifying at a Board -conducted hearing , prohibit em-
ployees from engaging in solicitation in connection with union activities during their
nonworking hours, or interfere with the Board 's processes by advising employees that
they need not give any information to agents of the National Labor Relations Board,
unless requested to do so, or in any other manner
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed in Case No. 16 -CA-1819 by United Stone and Allied
Products Workers of America , AFL-CIO, herein called the Union , the General
Counsel of the National Labor Relations Board , through the Regional Director for
the Sixteenth Region , issued a complaint , dated April 30, 1963, as amended June 13,
1963, against Certain-Teed Products Corporation, herein called the Respondent or
the Company, alleging violations of Section 8 (a) (1) and ( 3) of the National Labor
Relations Act, as amended ( 29 U.S .C. 151 , et seq. ), herein called the Act. The
answers of the Respondent admit certain allegations of the complaint as amended
but deny the commission of any unfair labor practices.
Upon a second charge duly filed by the Union on June 4, 1963, in Case No.
16-CA-1864, the Regional Director , on June 19, 1963, issued an order consolidating
the cases and an amended complaint alleging that the Respondent had engaged in
unfair labor practices in violation of Section 8(a)(1), (2 ), and (3 ) of the Act.
The answer of the Respondent admits certain allegations of the amended complaint
but denies the commission of any unfair labor practices.
Pursuant to notice , a hearing was held before Trial Examiner Reeves R. Hilton at
Hillsboro, Texas, on June 25 through 29, 1963. All parties were present and repre-
sented at the hearing and were afforded full opportunity to be heard, to introduce
-relevant evidence , to present oral argument , and to file briefs . On August 20 and 23,
1963, I received briefs from counsel for the Respondent and the General Counsel,
respectively.
On August 12, 1963 , I received the General Counsel 's motion to reopen the record
on the grounds that the Respondent , subsequent to the close of the hearing, had re-
fused to hire or reemploy the two discriminatees named in the complaint although
it had jobs for which they were available and qualified to fill . The Respondent filed
its response opposing the motion.
On the above date , the Regional Director , upon charges, as amended, filed by the
Union issued a complaint against the Respondent in Case No. 16 -CA-1905, alleging
violations of Section 8 (a) (1), (3 ), and (4 ) of the Act.
On August 29, 1963, the Regional Director moved to reopen the record in Cases
Nos. 16-CA-1819 and 16-CA-1864, and to consolidate Case No . 16-CA-1905
with those cases. The Respondent opposed this motion and filed its answer to the
complaint wherein it denied the allegations of unfair labor practices.
On September 5, 1963, I issued an order granting the motions to reopen and to
consolidate the cases.
Thereafter , pursuant to notice , a hearing on the consolidated cases was held be-
fore me at Hillsboro , Texas, on October 1, 2, and 3 , 1963. All parties were present
and represented at the hearing and were offered full opportunity to be heard, to
introduce relevant evidence , to present oral argument , and to file briefs. About
November 18, 1963 , I received supplemental briefs from counsel for the parties,
which I have considered together with the original briefs.'
Upon consideration of the entire record and upon my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE COMPANY 'S BUSINESS
The Company , a Maryland corporation , maintains its principal office and place
of business in Ardmore , Pennsylvania , and also maintains plants in several States
1 The General Counsel's motion to correct specified errors in the record , dated August 12
and November 12, 1963, are granted and received in evidence as Trial Examiner's Ex-
hibit Nos. 1 ( a) and (b).
CERTAIN-TEED PRODUCTS CORPORATION " 1523
including a plant at Hillsboro , Texas, which is the only plant involved in this proceed-
ing, where it is engaged in the manufacture of various asbestos products . During
the 12 months preceding the issuance of the first complaint , the Company manu-
factured , sold, and shipped products from this plant valued in excess of $50,000,
directly to points outside the State of Texas. During the same period the Company
purchased raw materials valued in excess of $50,000, which were shipped to the
plant directly from suppliers located in places outside the State of Texas.
The Company concedes, and I find, that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
The complaint alleges that the Suggestion Committee is a labor organization as
defined in Section 2(5) of the Act. For the reasons stated below I find the Suggestion
Committee is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The issues as framed by the pleadings in Cases Nos. 16-CA-1819 and 16-CA-
1864 are whether the Company: (1) discriminatorily discharged and/or laid off
Virgil O. Guthrie and Olan W. Hopgood, (2) initiated and sponsored a labor organ-
ization known as the Suggestion Committee , and (3 ) engaged in other unlawful
acts and conduct such as interrogating its employees, granting pay increases, creating
the impression of surveillance, threats of economic reprisals, and interfering with the
rights guaranteed employees under Section 7 in respect to the investigation and
hearing on the complaint.
The question presented at the reopened hearing and in Case No. 16-CA-1905, is
whether the Company, at various times subsequent to the close of the first hearing,
refused to recall and/or hire Guthrie, Hopgood, and Joe M. Worley in violation of
Section 8 (a) (1), (3), and (4) of the Act.
B. Background of the case
The Company's Acquisition of the Plant; Top Supervisory Officials
While the evidence is rather sketchy, the record shows that Keasbey & Mattison
Company began construction of the plant during 1960 and commenced operations
sometime in 1961. Thereafter, Certain-Teed purchased certain assets of Keasbey &
Mattison and since about June 1, 1962; it has maintained and operated , if not owned,
the plant.
The record further shows that the following persons held top supervisory positions
at the plant during the periods stated:
J. W. Gear, plant manager for both companies, and for Certain-Teed until at
least through July 1962, and perhaps until January 1, 1963.
Naaman Rhodes , assigned to the plant in October 1962 to straighten out produc-
tion problems , and since January 5, 1963 , plant manager.
John Langford , personnel director since March 6, 1961.
Jack L . Anderson, plant engineer since May 1960.
The Election of July 26, 1962
In 1962, the Union, through A. J. Shippey, International representative, conducted
an organization campaign among the employees which , seemingly, commenced
around March or April. The Gypsum Lime and Cement Workers, AFL-CIO, were
also attempting to organize the employees around the same time. According to
the Board's records , these unions filed representation petitions in June (Cases Nos.
16-RC-3179 and 16-RC-3180) and on July 26, 1962, an election, by stipulation,
was conducted by the Regional Director among the Company's hourly paid produc-
tion and maintenance employees , shipping and receiving employees , and plant
clericals, with the usual exclusions . The tally of ballots discloses that of approxi-
mately 100 eligible voters, 41 cast ballots in favor of the Union, 0 for the Gypsum
Workers, 50 against representation by either union, and 7 challenged ballots. Neither
union filed objections to the conduct of the election.
The General Theory of the Case
Shortly after the results of the election had been announced , Langford walked
to the gate with Shippey where they shook hands and Shippey said, "I'll see you in
about six months." Langford replied, "We'll be ready for you," and they parted.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It strikes me that these innocent remarks are the touchstone of the General Coun-
sel's case . Thus, Shippey 's "I shall return" declaration served as a warning that he
would renew his efforts to organize the employees , while Langford's answer indicated
the Company was ready to block any such movement. Oddly enough, Shippey did
not thereafter conduct any organization campaign among the employees. In fact
Shippey's activities in the period involved here consisted of his filing and investigat-
ing charges of unfair labor practices against the Company and sending a letter, dated
May 6, 1963, to the employees announcing the issuance of a complaint and notice
of hearing against the Company, together with his comments on the case. Despite
this situation, the General Counsel proceeded on the theory that every word, move-
ment, or action by the Company was part of a'plan designed to prevent and thwart
unionization of its employees. The General Counsel attempts to sustain his theory
by relying upon background evidence, preelection conduct, drawing farefetched in-
ferences from the testimony, viewing all company acts with suspicion, and criticizing
the inefficient and uneconomical manner in which the Company conducted its op-
erations. As might be expected in these circumstances, the General Counsel ad-
duced a mass of testimony and records, much of it trivia and immaterial to the basic
issues. Since the General Counsel, undoubtedly, devoted much time and energy in
the trial of this case and in his lengthy, fiery, and entertaining briefs, I shall endeavor
to consider the evidence thus adduced fragment by fragment.
C. The alleged discriminatory discharges or layoffs
Olan W. Hopgood
There is no serious dispute concerning Hopgood 's employment or the events
which resulted in the cessation of his employment. Hopgood was first employed
about May 1, 1961, by Jack Anderson, as a machinist in the maintenance department
and worked continuously until about January 25, 1963. His starting rate was $2.25
or $2.22 an hour, later he received four pay increases, and on and after June 1962
he earned $2.55 an hour.
Anderson, who supervised the maintenance department, stated the primary function
of the department was to keep the machinery and equipment in operable condition.
He further stated that in the period June 1962 to January 1963, there were 17
employees in the department , classified as follows: one machinist , Hopgood, two
electricians , and the remainder, maintenance mechanics . The duties of the em-
ployees were not strictly limited to their job classifications and at times the mechanics
did machine and electrical work while the machinist and electricians regularly per-
formed mechanics ' work, usually on Saturday when the machinery and equipment
were not being used for production purposes.
Hopgood admitted that at the time he was hired he was told that he would do
machine work until it was current and then do maintenance mechanic work or what-
ever else the Company had for him. Thereafter, in the period June 1962 to
January 12, 1963, Hopgood devoted about 60 or 65 percent of his time doing machine
work and the remainder he spent in the performance of maintenance work, some of
which was paid at overtime rates. In the same period , according to Hopgood,
Joseph H . Gibson , a maintenance mechanic , spent 20 or 25 percent of his time on
maichine work , that other mechanics also did light machine work , and some of the
machine work was sent to an independent machine shop in Hillsboro. Hopgood
estimated that he and Gibson performed 95 percent of all machine work in the
above period.
There is no question regarding Hopgood 's qualifications as -a machinist ; Anderson
considered him a fine machinist and exceptionally fast . Anderson also rated Virgil
E. Davis, a maintenance mechanic , a fine machinist and faster than Hopgood. Davis
had previously owned a machine shop and came out of semiretirement as a rancher
to accept employment as a mechanic about June 26, 1962. Likewise, Gibson had long
experience as a machinist and had been maintenance superintendent for a textile mill
located near Hillsboro. Gibson was employed as a mechanic about June 26, 1961.
While Hopgood never refused to perform maintenance work , he did express his
dissatisfaction or dislike of the practice to Anderson in the fall of 1962, as appears
below.
Naaman Rhodes, former manager of the Company 's pipe plant in St . Louis, was
assigned to the Hillsboro plant to help correct production problems at this facility.
Rhodes said the maintenance department was not equipped to do a great deal of
machine work , so he spoke to Anderson about sending the machine work to an out-
side shop where it could be done more efficiently and the department could devote
more time to maintenance work thereby insuring continuous operation of the ma-
chinery and equipment . Shortly after Rhodes became plant manager, January 5,
1963 , all of the machine work was done outside the plant.
CERTAIN-TEED PRODUCTS CORPORATION 1525
Anderson stated he discussed the subject of subcontracting the machine work with
Rhodes commencing around November 1962, and. after Rhodes became plant manager
they decided to try out the plan. Prior thereto, in fact since the plant began
operations, Anderson had subcontracted some of the machine work to Cecil A.
Fraser, who owned and operated a machine shop in Hillsboro, as well as other
machine shops in the general area. Accordingly, in the early part of January 1963,
° Anderson informed Fraser of his intention to subcontract its machine work and
commencing about January 13, 1963, the Company did send all of its machine work
to Fraser, or other shops.
Hopgood, of course, knew the Company was subcontracting or sending out all of
its machine work and after January 12 he worked as a maintenance mechanic, except
for one small machine job. This was the situation when Hopgood was called to
Anderson's office on January 25. On this occasion Anderson, according to Hopgood,
stated the machine work was being subcontracted, that the work looked pretty good,
and "not to be surprised if I get laid off in the near future." Anderson also stated
that if Hopgood wanted to look for another job the Company wuld give him a good
recommendation and would not expect any termination notice. Hopgood queried
what would happen if he could not find another job and Anderson said the papers
were full of jobs. Hopgood then stated he could do the machine work cheaper than
a subcontractor if he had high speed tools and Anderson indicated he had no control
over the subcontracting of the work. Apparently that ended the conversation.
About 10 minutes later Hopgood returned to the office and asked his foreman, Harold
Jarvis, if he had any vacation time and Jarvis said that he did. Hopgood inquired
if he could take his vacation in order to look for another job and Jarvis said he
thought he could, that he would speak to Anderson. Hopgood also remarked that
if he had the necessary tools he could do the machine work cheaper than an outside
shop and Jarvis commented that apparently the subcontracting of machine work "is
a coming thing." Shortly thereafter Anderson or Jarvis gave Hopgood his vacation
papers and check. Hopgood did not work thereafter and about January 30 he
obtained a job with Texas Steel Company, in Fort Worth, as a machinst at $2.90 an
hour.2 Hopgood promptly telephoned Anderson of his new employment and Ander-
son told Hopgood to pick up his final check and termination papers on February 1.
Hopgood went to the plant on the above date and spoke briefly with Anderson who
said he hated to see him leave and that he would probably have to get a replacement
for him. Hopgood then went to the personnel office where he met with John C.
Langford, personnel director. Langford asked why he was leaving and Hopgood
stated his reasons, which Langford wrote down on the Company's exit interview
form. This form, which was signed by Hopgood and Langford, stated Hopgood was
terminated for the following reason:
Possible revision of Maint Dept. Employee was told he might be terminated
and if he found another job he should consider it. Also was told no advance
notice was necessary if he elected to resign . Employee found a job in Fort
Worth.
Anderson testified substantially the same as Hopgood concerning their conversation
and the events of January 25.
Anderson further testified that after Hopgood's termination two situations arose
at the plant which affected the subcontracting of all machine work. First, Joseph
Lord, maintenance engineer, who prepared the detailed drawings necessary for the
subcontractor to perform the work, was transferred to another plant .3 Secondly, the
Company instituted a program to manufacture large pipe which involved new in-
stallations and new work outside the area of maintenance work, which placed a
heavier load upon the maintenance department. In any event the Company con-
tinued to subcontract most of its machine work during the greater part of February.
During this period Anderson "handwaved" the work to Fraser, that is, sent the work
to Fraser on verbal instructions rather than by written drawings or blueprints.
Thereafter the volume of machine work decreased, due to the completion of the
jobs or projects, but as Anderson was still without the services of a maintenance
engineer he had most of the machine work performed in the shop so he could give it
close, personal supervision . Gibson was then promoted to machinist about March 4,
and after that date, according to mechanic Motley, most of the machine work was
performed by Gibson and Davis, with mechanics also performing some of this work.
2 Hopgood moved to Burleson, which is about 45 miles from Hillsboro, and about 11
miles from Fort Worth.
sAnderson, as of January 25, was aware of,the fact that Lord was scheduled to be
transferred
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About June 17, Charles Hodges was hired as Lord 's replacement and Anderson
stated that as of the date he testified , June 28 , the Company had five machine jobs
out for quotation on drawings prepared by Hodges. -
Rhodes stated that Lord , with his approval , was transferred to the St. Louis plant,
as plant engineer, about February 1, 1963. This left the plant shorthanded with
only Anderson and the maintenance supervisor to run the engineering and mainte-
nance departments and seriously affected the subcontracting of machine work since
Lord had been preparing the drawings for this work . Rhodes further stated that
having obtained a new maintenance engineer , and from his experience at the St.
Louis plant, he intended to carry out his plan to subcontract machine work.
As I understand the General Counsel 's position , as expressed in his brief, he does
not question the Company 's right to subcontract its machine work , and that it actually
did so, but that it discriminatorily selected Hopgood for layoff or termination.
Hopgood 's union activity consisted of his signing a union card about April 25, 1962,
attending some seven meetings in May, June, and July , and acting as union observer
at the election of July 26 . In an effort to show the Company 's union animus and to
present Hopgood as a strong proponent of the Union, the General Counsel devoted
much time in developing events and acts which occurred more than 6 months prior
to the date of the filing of the original charge , March 26 , 1963. The background
evidence which commences with Hopgood 's initial employment interview may be
summarized as follows.
Hopgood submitted his written application for employment , which is dated
April 18 , 1961 . In outlining his previous employment Hopgood stated he had
worked for Chance -Vought Aircraft and had been laid off , and that he had been
employed by Dallas Airmotive and left his employment for the reason , "Union came
in " Hopgood related that when he was interviewed by Anderson , about April 20,
1961 , Anderson inquired if he was, or had been , a member of a union. Hopgood
replied that while working for Chance-Vought he was a member of a union, which
he considered to be a good one , and that he also worked at Dallas Airmotive which
had just been organized by a union and when he heard the union was responsible
for some restriction on the use of restrooms , he was "deeply opposed to the union,"
which seemingly was his reason for leaving this company . The interview ended with
Anderson accepting Hopgood for employment.
About April 30, Langford also interviewed Hopgood in the course of which he
asked if Hopgood was a union member and he gave Langford substantially the
same response he had given Anderson . Langford remarked that the Union would
be calling on him , or be at the gate, because it planned to organize the plant. As a
result of the employment interview Hopgood was hired and reported for work the
next day, May 1.
Langford said in his interview of job applicants, including Hopgood , he asked the
applicant if his employment background indicated he had worked in an organized
shop , or a union shop , if he had any objection to working in an unorganized plant.
Langford also told the applicant that it was the Company 's ambition and preference
to operate without a union , that employees had all the advantages that could be
offered and there was no need for a union , but the applicant was free to make his
own choice insofar as unions were concerned.
There is no doubt that in the preelection campaign in 1962 , top supervisory
officials of the Company , through speeches and literature , expressed their opinions
of the competing unions and stated their reasons for their opposition to representation
of the employees by either union as well as the absence of any necessity for any
organization of the employees . It also seems clear that Shippey conducted his own
campaign and that Anderson was one of his targets in his campaign literature.
Hopgood stated that about July 13, Anderson asked if he was going to vote for the
Company in the coming election but Hopgood did not answer him. Hopgood then
inquired what would happen if the employees voted for a union and Anderson replied
if only 4 or 5 voted that way the Company had nothing to worry about, but if 40
employees did so the Company would have to do something to smooth out their
problems. Anderson again asked if Hopgood had made up his mind which way
he would vote and Hopgood 's response was, "I didn't reply that I had or hadn't."
Later, about 2 weeks before the election, Anderson remarked , "Hopgood I hear
you've been hanging around that whorehouse ." Although Hopgood claimed he did
not know what Anderson was talking about , he made no effort to find out and that
ended the matter . However , Hopgood said he attended a union meeting at the Hill
Hotel in Hillsboro the night before , so according to the General Counsel , he later
realized Anderson was referring to that meeting, thereby creating the impression of
surveillance of union meetings and Hopgood 's union activities.
CERTAIN-TEED PRODUCTS CORPORATION 1527
Hopgood related another incident, which happened about 2 days before the elec-
tion , when Anderson came to the machine shop with a sample ballot and asked
Hopgood if he knew how to vote. Hopgood replied, "I guess I'd just close my eyes
and pick one." This prompted Anderson to exclaim; "No, no, you don't do that."
Foreman Jarvis then retorted, "Hopgood knows which side of his bread is buttered."
Shortly after the conclusion of the election, and the next day, Anderson told
Hopgood he was surprised and disappointed because he acted as observer at the
election. Again, about 3 days following the election, Anderson inquired if Hopgood
had heard from Shippey and he answered, no, "that after he lost the election he had
probably left the country." Anderson then declared, "Oh, no. He'll be back. And
the next time I think he'll win. If he had had 30 more days I might have signed with
him myself."
Around September 1, Shippey sent a letter to Hopgood and some other employees
which might be characterized as a postmortem on the election, an appeal to resist any
pressure to quit their jobs, and a suggestion that they pull together to organize
a union now. Sometime later Anderson told Hopgood, "You all just lost another
vote. Jimmy Faulkner just left. He received Shippey's letter too late." About
September 15, when Rudy Poston left his employment Anderson commented to
Hopgood it looked like the Union had lost a vote, and when Johnson quit in Decem-
ber, he remarked maybe the Company had lost a vote.
Hopgood related the following conversation with Anderson on September 22:
Mr. Anderson, in effect, asked if I'd heard or seen Shippey lately. I answered
that I hadn't. Then I stated that I'd seen what the company had planned on
doing with the 40 people that he mentioned earlier. Jack Anderson then stated
that there was 41 people-the company had 41 people that they didn't care if
they all quit. I asked Mr. Anderson if the company was going to help them
make up their minds to quit, and he stated, and I quote: "They had better
watch their step."
The next conversation took place in October. On this occasion Hopgood said
Anderson was washing up with soap which the employees called "Shippey's hand
cream," and Hopgood remarked to Anderson that the use of this soap "might tend
to make him want to sign up with the union." Anderson said he could not under-
stand why anyone so opposed to unions when he was hired , as Hopgood, would
ever change his mind . Hopgood complained that mechanics were performing ma-
chine work while he was doing mechanic's work, which was costly to the Company
and unfair to himself and the mechanics. Anderson told Hopgood, "You couldn't
have everything your own way, and that if I didn't like the job why didn't I quit."
Hopgood responded, "I didn't quit unless I have a good reason." The conversation
ended with -Anderson saying, "Why didn't we let all this union talk die down."
Finally, sometime in October Anderson introduced Hopgood as "our union orga-
nizer" to a visiting representative of another company.
On cross-examination Hopgood expressed some difficulty in recalling these inci-
dents for the reason , as he testified:
Well, this whole thing has been hazy, because it happened a year ago. Mr.
Shippey came by the house. We made this thing out, and we'd get a piece here
and a piece there . I couldn 't remember it all, and just right down the line.
I had to give him what I knew.
Anderson admitted that on occasions when an employee quit his employment there
was some "good natured ribbing" between himself and Hopgood as to whether he
or Hopgood had lost a vote . Anderson further admitted that he engaged in joking'
conversation concerning the Union with other employees at the plant . Anderson
also stated he had conversations with Hopgood regarding his likes and dislikes of his
job and Hopgood expressed dissatisfaction with his having to do mechanical work
while the mechanics did machine work. While discussing this matter in the fall of
1962, Anderson told Hopgood he could arrange for him to perform machine work
exclusively, but he could not guarantee him a 40-hour week under these conditions.
This was not acceptable to Hopgood.
From the foregoing evidence I have no difficulty in finding that the Company's
decision to subcontract its machine work was for business reasons and commencing
about January 12, 1963, all such work was performed by outside shops. Hopgood,
of course, was aware of the situation and between January 12 and 25, 1963, he
worked exclusively as a maintenance mechanic (except for one small machine job),,
and prior thereto he had expressed dissatisfaction with that type of work. There
is no dispute concerning the circumstances under which Hopgood left the Company.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 25, Anderson informed Hopgood he might be terminated in the near
future and if he wanted to look for another job Anderson would give him a good
recommendation and waive any termination notice. Hopgood then went on leave,
found a machinist job at a greater rate of pay, and on February 1 he was formally
separated from the Company . His formal separation notice, which he signed , stated
that he was terminated for the foregoing reasons. While the facts might indicate
Hopgood quit his job , I find he was laid off or terminated on January 25.
Clearly, the Company was justified in reducing its maintenance department as a
result of the subcontracting of its machine shop work and since Hopgood was the
only machinist in the department he was certainly the logical man to be selected
for layoff or termination . Consequently , the General Counsel had the burden of
proving by a fair preponderance of all the evidence that his selection was motivated
by unlawful considerations . In my opinion , the evidence which I have detailed
item-by-item completely negates the idea he was laid off for discriminatory reasons.
The so-called background evidence, from which the General Counsel draws farfetched
and unwarranted inferences , amounts to nothing more than an attempt to rehash the
election campaign and to rescue the Union from its unsuccessful efforts to win a fair
election . Indeed , Hopgood himself admitted he was hazy about the whole affair
and that he and Shippey "made this thing out" when Shippey came to his home.
Apart from the dubious character of Hopgood's testimony, I find the background evi-
dence sheds no light at all upon his supposedly discriminatory layoff, or as establish-
ing unlawful union animus on the part of the Company for any purpose whatsoever.
In spite of all this planning, Hopgood could come up with only two incidents
which occurred within the statutory period, namely, October 1962. The first in-
volved a conversation initiated by Hopgood when he facetiously remarked about
Anderson using "Shippey 's hand cream ," and the second was Anderson 's introduction
of Hopgood to a plant visitor as "our union organizer ." I fail so see how these
remarks can be considered as coercive and I attach no importance to them.
To buttress his contention that Hopgood was discriminatorily laid off, the General
Counsel argues that the Company disregarded its established seniority policy concern-
ing layoffs and selected Hopgood despite the fact that he was the senior and most
experienced employee in the maintenance department ? I cannot see the applicability
of the Company's layoff policy in Hopgood 's case. Here, as I have found, the
Company had no need for a machinist and since Hopgood was the only employee
in that classification he was laid off or terminated . Surely, the Company had the
right to effectuate the reduction in force in a nondiscriminatory manner and it was
under no obligation to rearrange its work force and layoff or terminate any other
employee in order .to retain Hopgood. Clearly , the Company's failure to follow the
procedure suggested by the General Counsel does not warrant the implication of
illegal motivation.
The record also discloses that Gibson was promoted to machinist about March 4,
1963, and thereafter , at least until about June , most of the machine work was per-
formed at the plant . Anderson and Rhodes , as detailed above, offered satisfactory
explanations for these changes, plus the fact that as of the date of the hearing,
June 1963, the Company had made plans to carry out its earlier decision to sub-
contract its machine work . Accordingly , I see nothing sinister in these changes,
which were obviously unforeseen , and they are wholly inadequate to warrant the
inference of unlawful motivation in the selection of Hopgood for layoff or termina-
tion on January 25.
Considering all the evidence , and in view of the foregoing findings, I further find
and conclude that Hopgood was not laid off or terminated in violation of Section
8(a)(3) or (1) of the Act.
Virgil O. Guthrie
Guthrie was hired on March 27, 1962, and was discharged January 4, 1963. In
the course of his employment interview Langford asked if he had worked in union
plants and Guthrie stated that while employed at the Fort Worth Convair plant he
was a member of the IAM, that he had worked for Bell Helicopter, Fort Worth,
for over 4 years during which time he was a member of the UAW-CIO, and at one
time he had been a member of the Carpenters local at Temple, Texas. Langford,
according to Guthrie , said the Company was paying adequate wages for the area and
there was "no need for a union here. They didn't want a union . In other words
they didn 't intend to have a union here." Guthrie replied he had no objection "to
working without a union " as long as he could discuss problems with supervisors.
4 The seniority policy as set forth in the employee handbook provides * "In the event
of layoff, the - employees with the least departmental seniority will be laid off, providing
the remaining employees have the ability and qualifications to perform the work.
CERTAIN-TEED PRODUCTS CORPORATION 1529
Langford assured him employees were free to discuss such matters with supervisors
and management . On the same day Guthrie was also interviewed by George Hub-
bert, production or plant superintendent . Both Langford and Hubbert told Guthrie
he would work in the manufacturing department under John Klingelhoeffer who
was a fully qualified , but "rough ," foreman.
Guthrie was first hired as a laborer on the third shift at $1 67 an hour. The
following June he received two 4-cent an hour pay increases , an automatic 3-month
raise, and a general pay increase , respectively . In June, Guthrie was also promoted
to floorman , with a 10-cent increase bringing his rate up to $1 85 an hour. As Floor-
man Guthrie worked under Jimmy L. Landrum, shift foreman in the manufacturing
department . On September 27, 1962, Guthrie received a 6-month automatic pay
increase bringing his rate up to $1.89 an hour.
Sometime in late April 1962, Shippey called upon Guthrie at his home and about
May 3 he signed a union card and attended one union meeting held the same month.
In June, Guthrie also signed a card for a Mr. Brock , an organizer for the Gypsum
Workers, and attended two meetings of that union held the same month . Guthrie
accepted union cards from both Shippey and Brock and succeeded in signing up
two employees for Brock . Guthrie further stated that during May , June, and July,
he openly discussed organization with employees at the plant during nonworking
hours, asked the men to sign cards to bring about an election , and he was called
"Old Man Shippey" by some of the employees . Guthrie admitted he did not discuss
organization with any of the supervisors or in their presence . However, the General
Counsel did develop that Guthrie spoke to his friend and coworker Bennie Schriver,
whose father was a foreman , regarding organization . On two or three occasions in
June and July, Langford asked what he thought of the union situation and how the
men were talking and Guthrie stated he did not know. Admittedly no supervisor
asked Guthrie how he was going to vote in the election.
Counsel for the parties, in their briefs , do not attempt to outline the manufactur-
ing process or the duties performed by Guthrie after his promotion from laborer to
floorman on or about June 25, and, in my opinion , the record is rather sketchy in
these respects . According to Rhodes the Company manufactures asbestos cement
pipe used for water and sewer lines, and heat ventilating ducts, which vary in size
from 4 to 24 inches. As I understand his testimony , the pipe, at least up to Novem-
ber or December 1962 , was manufactured by a pipe machine which was operated
by seven floormen per shift , the machine being run on a three-shift basis 5 The
crew consists of a mixer , who is responsible for the mixing of ingredients , the press
operator who runs the press section where the pipe is formed , the air-lance operator
who helps the press operator air stab the pipe and in the operation of any malfunc-
tion of the mandrel , the stripper who pulls the mandrel from the pipe, two floormen
who load the pipe into the autoclave trays at the end of the secondary tunnel, and
a man who does cleanup and relief of some of the crew. Guthrie said he worked
primarily on the takeoff, or the end of the manufacturing line, where the pipe is put
into trays or tubs for the next operation . Guthrie at times also operated the air
lance and performed the stripper operation , that is strip the steel mandrel, around
which the pipe is formed , from the pipe.
Around the first of July , Landrum warned Guthrie he was damaging too much
pipe and Guthrie claimed he was not damaging any more than the other floorman,
but Landrum insisted that he was and that he would have to improve his work.
Guthrie promised to do so.
Sometime between July 1 and 15, Landrum asked Guthrie to work overtime, which
Guthrie refused to do. Landrum then reminded Guthrie he was not to refuse a
foreman's request to work 'overtime and Guthrie replied, "Well , Jim, I gotta go
home. I am telling you I can't work overtime ." Landrum thereupon became
"hostile" and remarked , "If this damn union goes in that 's one thing that will be in-
cluded in the contract , that you guys will work overtime when you're told." Guthrie
retorted if the Union came in its representatives would not ask either of them to help
write the contract. On cross-examination , Guthrie would not say he was "mad"
with Landrum for asking him to work overtime , but perhaps he raised his voice be-
cause "it wasn 't reasonable that I could work overtime , or I didn't feel that I could
that particular time." When asked if he liked to work overtime Guthrie answered,
"I don't like to work period." However, Guthrie further stated that most of the
time he accepted overtime but there were times when he refused such requests.
Guthrie did not work overtime on this particular occasion.
About August 1, Landrum met Guthrie in the lunchroom and again accused
Guthrie of excessive damage or breakage of pipe. Guthrie answered , "I don't feel
B As appears below the Company had 24 employees in the manufacturing department.
Apparently , three of the employees were classified as laborers
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like I'm breaking more pipe than I can physically help." Landrum disputed his
assertion and the conversation, which became heated on both sides, went on for
about an hour. In the course thereof, Landrum also accused Guthrie of talking too
much and Guthrie admitted he did talk with the men. Following the conversation
Guthrie returned to work and he had no further warnings or complaints from
Landrum. However, Guthrie stated that Bill Cole, machine tender or working fore-
man, told him, as well as other employees, on two or three occasions to be careful
with the pipe, not to bump or break it.
About September 27, 1962, Landrum called Guthrie to his office for his 6-month
work review or appraisal. Landrum went over the company appraisal form and
discussed and explained his rating of Guthrie on the many items contained therein.
The form (General Counsel's Exhibit No. 24) shows, inter alia, that Landrum rated
Guthrie average in the handling of equipment or process, careless insofar as mate-
rial or product was concerned, poor as to quality of work under normal production,
slow worker as to quantity or production, noncooperative toward supervisors, and
an overall rating as a fair employee. The form further shows that Guthrie had two
verbal warnings concerning his workmanship but in the two preceding months he had
shown improvement, so on that basis Landrum recommended him for an automatic
raise. Guthrie was not satisfied with his rating and asked Landrum if there was
any "personal gimmick" involved and Landrum assured him that was not the case.
Seemingly, Landrum did not thereafter complain about Guthrie's work. Guthrie
also stated that in early December Landrum complimented him and Willie Helona,
a coworker, because they came up with a device or suggestion to improve the method
of stacking pipe.
It is undisputed that the Company made some change in the pipe machine or
production line in November, and later made a major modification of the pipe ma-
chine which necessitated the shutdown of the manufacturing department from Mon-
day, December 17, through Sunday, December 23.
Guthrie stated that shortly before the December shutdown, Langford asked, "What
is the union talk compared to last July?" and he replied, "Well, I haven't heard too
much lately, John." Guthrie then remarked that if another election had been held
soon after the July election the Union would have won because some of the em-
ployees felt there had been a speedup of operations. Langford denied there had
been any speedup. Guthrie also expressed the opinion the Union should be back
most anytime to organize the plant and Langford commented, "They'll be back
down next week." Guthrie characterized their conversation as a "friendly" one.
Langford said on the above occasion he happened to meet Guthrie near the time-
clock and he inquired how the work was going. Guthrie replied things were better
than in July or August, when things were tough, and if the election had been held
30 days later the Company would have lost. Langford then asked if he was going
to work (on maintenance ) during the coming shutdown and Guthrie told him, no,
that he would catch up on his farm work.
At the time of the shutdown there were 24 production employees in the manu-
facturing department, 18 of whom had greater seniority than Guthrie. While no
manufacturing operations were performed during the period of the shutdown there
were job openings to assist the maintenance crew and these were filled by the produc-
tion employees in the order of their seniority and availability. Langford stated that
11 production employees worked on maintenance during this period, 10 of whom
had greater seniority than Guthrie. The remaining employee, Schriver, the fore-
man's son , had less seniority than Guthrie.
Guthrie returned to work when operations were resumed and worked continuously.
except for the Christmas holidays, until January 4, 1963. On the latter date Guthrie
was working the second shift and shortly before midnight Landrum said he had
"bad news" for him, that he was being laid off, and to come into the office. There,
Landrum handed Guthrie a -letter and requested that he read and sign it. Actually
the letter was an exit interview form, dated January 4, 1963, signed by Hubbert,
stating that Guthrie was terminated as of that date for the reason, "Recent revisions
in equipment eliminates the need for three floormen." Guthrie also signed a state-
ment appearing on the bottom of the form to the effect that he had read the informa-
tion contained therein and that it was true and correct.6
O At the hearing Guthrie identified his exit form, marked "True copy," which was
offered and received in evidence as General Counsel's Exhibit No. 25. There also appears
in the original exhibit file a purported typewritten copy of the exit form, which is neither
marked nor stamped as an exhibit, and which varies materially from the form received
in evidence I can offer no explanation for the presence of the so-called typewritten copy
of the exit form in the exhibit file. Of course, I do not consider it as an exhibit in
the case
CERTAIN-TEED PRODUCTS CORPORATION 1531
Joe M. Worley, a floorman on the third shift, stated that when he reported for
work around midnight, January 24, he saw a new timecard in the rack and when he
asked Foreman Flanagan what the deal was, Flanagan simply nodded his head and
went to his office. Worley then went to the lockerroom where he met Guthrie and
Rex Roberson, a floorman on the third shift, and learned they had been terminated.
After discussing the matter, Worley returned to the office where Flanagan handed
him an envelope containing his termination notice. When Worley asked for an ex-
planation Flanagan said he had nothing to do with it. The next day, January 5,
Worley went to the plant and talked to Hubbert who told him they had to eliminate
three men and they decided Worley, Guthrie, and Roberson "could not do your jobs,"
so they were selected for termination. Worley pointed out he had been on the job
almost 2 years and that any company would give an employee a chance at another.
At that point Rhodes came in, so the conversation ended and Worley left the plant.
Landrum stated that shortly after the manufacturing department resumed opera-
tions Hubbert informed him the modifications had eliminated the need for the take-
off man on the machine and that three men in the manufacturing department were
to be terminated. Landrum and Hubbert then discussed each employee on Lan-
drum's shift and they decided Guthrie was the weakest man on his shift. Landrum
did not discuss the merits or abilities of employees on other shifts and he did not
know how the other two employees were selected for termination.
Langford related that about January 3, Gear told Hubbert he was overstaffed
because of the modifications and he was to terminate three men. Hubbert asked
if he should follow seniority and Gear told him to select the three weakest men
in the department. Later that day Hubbert obtained the personnel folders of
Guthrie, Worley, and Roberson from Langford, which he examined in Langford's
presence. After completing his examination Langford inquired if these were the
men he had selected for termination and Hubbert answered in the affirmative.
Guthrie made no attempt to personally contact the Company subsequent to his
termination. However, on January 14, he wrote the Company requesting "fuller
understanding of the reasons for my termination," and by letter dated January 21,
the Company stated he had been terminated in a reduction-in-force program. On
January 30 and April 2, Guthrie sent letters to the Company requesting that they
be considered as applications for employment. Apparently, the Company never
acknowledged receipt of these letters.
The record discloses that as a result of modifications and changes made in the
manufacturing department, Gear, on January 3, 1963, instructed Hubbert that he
was overstaffed and to terminate the three weakest men in his department. The
next day Guthrie, Worley, and Roberson were discharged. The only question
presented is whether Guthrie was selected for discriminatory reasons.
The evidence, set forth above, is wholly inadequate to warrant a finding of un-
lawful motivation in the choice of Guthrie for discharge.
By his own version, Guthrie's union activities were meager and limited. In May
1962, he signed up with the Union and attended one meeting . The next month he
signed a card for the Gypsum Workers and attended two meetings. While he dis-
cussed organization with employees, and signed up two men for the Gypsum Work-
ers, all of this was accomplished during nonworking hours and outside the presence
of any supervisors. In an obvious attempt to show some company knowledge of his
activities, Guthrie stated that he spoke to one of his coworkers, whose father was a
foreman , regarding organization . Again , he claimed that during June and July
Langford inquired what Guthrie thought of the union situation and how the men
were talking and he answered he did not know. Admittedly, no supervisor asked
how he was going to vote in the election.
Guthrie related another conversation he had with Langford in December 1962, in
which Langford inquired about the union talk in comparison to last July, and
Guthrie replied he had not heard too much talk about the Union. Guthrie also
commented he believed the Union would have won the election if it had been held
on a later date and in his opinion the Union should be back soon to organize the
plant. Langford remarked the Union would be down the next week. Concerning
this conversation, Langford said he happened to meet Guthrie near the timeclock
and merely asked him how work was going. Guthrie replied things were better
than in July or August, and if the election had been held 30 days later the Company
would have lost. Langford then asked Guthrie if he was going to work on main-
tenance during the coming shutdown and he told him , no, he was going to work on
his farm. From my observation of Langford and Guthrie while testifying, I accept
Langford's account of the conversation.
I also credit the testimony of Landrum and Langford and find that Guthrie,
Woiley, and Roberson were selected for termination for the reasons stated by them.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of course, there is no dispute regarding the circumstances under which the termina-
tions were effectuated. The General Counsel, in his brief, advances many argu-
ments and theories from which he concludes that Guthrie's selection was prompted
by illegal considerations. Without attempting to enumerate all these arguments
and theories, they do include the failure of the Company to follow strict seniority,
the retention of laborers receiving a lower rate of pay, the fact that the manufactur-
ing department worked overtime both prior and subsequent to Guthrie's discharge,
and the temporary assignment or transfer of employees from the finishing to the
manufacturing department, some of these employees being paid a higher rate than
Guthrie.
Since Guthrie, as well as Worley and Roberson, were terminated because of the
elimination of three jobs, the Company's layoff policy, which did not provide for
strict seniority, is wholly inapplicable.?
The remaining arguments and theories are directed at the manner in which the
Company conducted its operations. At the hearing, I rejected General Counsel's
Exhibit No. 44, which purported to show the amount of overtime work performed
in the manufacturing department both prior and subsequent to the terminations for
the reason that Guthrie, Worley, and Roberson were terminated for reasons other
than lack of work in the department. With respect to its overtime practice, the
General Counsel argues (p. 22 of his first brief) :
that the Respondent laid off at least one more employee on January 4,
1963, than it could economically afford, unless it, for some unexplainable
reason, desired to "trade" an employee's regular time rate for the remaining
employees' overtime rates., That such a decision could be made to effect
economy and efficiency is ridiculous on its face. However, that apparently
is the conclusion reached by the Trial Examiner in his rejection of GC-44.
Thus, the General Counsel's position amounts to nothing more than attack upon
the Company's judgment and reasonableness in the selection of Guthrie for discharge,
instead of some other employee, or that the Company could have rearranged its
method of the operations in the manner suggested. Therefore, the failure of the
Company to follow these procedures warrants the inference of unlawful motiva-
tion in the selection of Guthrie for discharge. I find no merit in these arguments
and theories.
In N.L.R.B. v. T. A. McGahey, Sr., et al., d/b/a Columbus Marble Works, 233
F. 2d 406, 412, the Court of Appeals for the Fifth Circuit clearly held:
The Board's error is the frequent one in which the existence of the reasons
stated by the employer as the basis for the discharge is evaluated in terms of
its reasonableness. If the discharge was excessively harsh, if lesser form of
discipline would have been adequate, if the discharged employee was more, or
just as, capable as the one left to do the job, or the like then, the argument runs,
the employer must not actually have been motivated by managerial considera-
tions, and (here a full 180 degree swing is made) the stated reason thus dis-
sipated as pretense , nought remains but anti-union purpose as the explanation.
But as we have so often said: management is for management. Neither Board
nor Court can second-guess it or give it gentle guidance by over-the-shoulder
supervision. Management can discharge for good cause, or bad cause, or no
cause at all. It has, as the master of its own business affairs, complete freedom
with but one specific, definite qualification- it may not discharge when the
real motivating purpose is to do that which Section 8(a) (3) forbids.
The above language was cited with approval in Steel Industries, Incorporated v.
N.L.R.B., 325 F. 2d 173, by the Circuit Court of Appeals for the Seventh Circuit.
On the basis of all the evidence, I find and conclude Guthrie was not discharged
or terminated in violation of Section 8(a) (3) or (4) of the Act.
D. Alleged acts of interference, restraint, and coercion
Eugene A. Sulak was hired about September 18, 1961, and was presently work-
ing in the finishing department under Foreman McBrayer.
Sulak related a conversation with Langford around Thanksgiving 1962 in which
Langford asked if he was satisfied with his job and Sulak replied it was nothing to
7 The General Counsel points out that when the manufacturing department shut down
in December and reopened in January, the Company followed its layoff policy I do not
see any analogy between the situations Oddly enough, Guthrie declined Langford's offer
to work on maintenance during the period of the shutdown.
CERTAIN-TEED PRODUCTS CORPORATION 1533
brag about. Langford then requested he help out with the Union and Sulak com-
plained he had not had any overtime since Shippey left; "that I had turned 9 votes
against the union the last time and that I wasn't going to work either way." Ap-
parently, that ended the conversation.
Sulak stated that on June 3 and 4, 1963, he spread a rumor among the employees
that a union meeting would be held on Tuesday night, June 4. The next day, Lang-
ford inquired if he had had a good time the night before and Sulak answered he
always had a good time when he was at home. ' Langford said he was referring to
the union meeting and added, "You'd be surprised who told me." Sulak said he did
not care who had reported the matter, that he had expressed his opinion of the
Union to Langford around the previous Thanksgiving Day. Langford thereupon
cautioned Sulak not to circulate any union cards, or any kind of cards, at the plant
and he replied he never thought of doing anything like that. Langford commented
that he did not want to hurt anyone and in turn he did not want anyone to hurt him.
Sulak thereupon remarked, "I haven't seen Shippey since the last election. I had
about nine cards against the Union the last time, and the only thing I ever got out
of it was a go-to-hell look." Langford said he believed him and walked away. On
cross-examination, Sulak admitted telling Langford there was no meeting the pre-
vious night, that "I was just kidding the boys, and I wanted to see how fast it would
get back to you."
Sulak also stated that on June 6, McBrayer declared he would like to kick Shippey,
and Sulak and Sulak told him to start kicking. McBrayer then remarked, "Well, the
union wouldn't help you any. A lot of people claim if they were union they couldn't
be fired" and "if this place was union that it had reasons to fire a lot of guys."
On June 12, Langford told Sulak his buddy, Shippey, was in town to collect $5
from each man and with a couple of more plants Shippey would have it made. Sulak
commented Shippey may have a good deal, at least he drives a new air-conditioned
car.
Sulak claimed Foreman Schriver spoke to him about June 20, and from his rather
incoherent account of their conversation, in which he stressed profanity, it appears
Schriver was disturbed because some of the employees were stupid enough to join
the Union and put their confidence in Shippey, who was also stupid, instead of the
Company.
Johnny R. Slovak was hired about July 19, 1961, and worked as a floorman in the
manufacturing department until about March 1962, when he was transferred to the
finishing department.
Slovak testified he and Langford had been close friends for many years and both
were members of the local National Guard unit. Slovak stated that on the evening
of June 4, 1963, he and Langford attended a unit meeting at the armory and Lang-
ford remarked he though Slovak would be at the union meeting, which was being
held that night. Slovak tolk Langford no union meeting was being held that night,
although he had heard rumors to that effect, and that someone was "just pulling your
leg." That ended the conversation. The next day Langford told Slovak he learned
one of the men had started a rumor of a union meeting in order to find out how
quickly it would get back to him. Slovak answered he was in the restroom, the day
before, when Sulak asked him and some 15 other employees if they were going to
attend Shippey's meeting that night at the Del Mar Hotel. Slovak conceded that in
the preceding months he and Langford had had many conversations concerning the
Union, some of which he, himself, had initiated.
On June 6, according to Slovak, Langford informed him that Shippey had filed
charges against the Company alleging that the Suggestion Committee was a company-
dominated union . Langford then asked if any representative of the Board was
around and Slovak said he had heard that Attorney Eckhardt was in town. He
thereupon told Slovak he did not have "to volunteer information or give any
information only what he asks you, or if you're subpoenaed." Langford further
stated, "We've got nothing to worry about if we all tell the truth." Langford also
mentioned that the Company did not permit solicitation of any kind at the plant
and if any of the employees solicited cards or engaged in union activities at the
plant, he would personally escort them out the door and see that they were black-
balled from the Company. He then inquired if Slovak had observed any such
activities and he told him no.
Sulak and Johnson had separate conversations with Langford about June 6, the
gist of these conversations being that Shippey had filed charges against the Company
and that a representative of the Board might be around to interview them, but
they did not have to tell him anything. However, if they did talk to him they would
probably be subpenaed and be required to testify at a hearing.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joe E. Divin, employed in the finishing department under McBrayer, stated that
about June 7 Langford told him a representative of the Board would probably be
around to see him and "You can tell him anything you want, or you don't have to
tell him anything."
Langford testified he informed about 90 percent of the employees that unfair labor
practice charges had been filed against the Company and in all probability they
would be contacted by representatives of the Board. He further informed them that
they were free to give these representatives any statements they desired, but cautioned
them to tell the truth because they would probably be called upon to testify at a
hearing. He also added they were not obligated to make any statement unless and
until they were subpenaed to appear at a hearing.
On the morning of June 28, 1963, I granted the General Counsel's motion to
amend his complaint to allege that on June 27, the Company, through Superintendent
Reeves, "in order to interfere with the Board's trial processes disciplined its em-
ployees by giving them a written warning for being late to work."
Slovak and Vernon Schronk, both employed in the finishing department, were the
alleged victims of this act of interference which occurred under the following cir-
cumstances. Slovak and Schronk who were under subpena appeared as witnesses
for the General Counsel on June 26 and concluded their testimony that day. They
were also present, obviously to aid the General Counsel at the hearing on June 27,
•which was adjourned about 6:20 that evening. Both men were working the 4 p.m.
to 12:30 a.m. shift that day. About 6:25 Schronk telephoned Foreman Schriver
to report that he and Slovak had just been released by the General Counsel and
would be about 45 minutes late for work since they had to change their clothes and
get something to eat. Schronk and Slovak punched in about 7:15 and 7:30, respec-
tively, and went to work. Schronk said a few minutes later he saw Reeves talking
to Slovak so he went over and joined them. Reeves then told Schronk he had an
unexcused absence and that it would be made a part of his record. On cross-
examination, Schronk reluctantly admitted Reeves may have stated that if his tardi-
ness was a result of an understanding between the General Counsel and a top
company official he would straighten out the matter. He further conceded Reeves
may have reminded him of his responsibility to his job. Slovak, strange, as it seems,
did not testify concerning the foregoing incident.
On June 29, Schronk and Slovak received letters, dated June 28, to the effect that
they had failed to report at 4 p.m. on June 27, and had failed to give timely notice
to their foreman that they would not report, for their shift, which necessitated the
payment of overtime to other employees to cover their jobs. The letters concluded
with a statement that Schronk and Slovak should consider the same as a written
warning and that continued absenteeism or failure to report would be cause for
further disciplinary action and eventual loss of employment.
The events stemming from Sulak's circulation of the false rumors of a union meet-
ing on June 3 and 4, the General Counsel contends, establishes unlawful interroga-
tion on the part of Langford, plus threats and the creation of surveillance of union
activities. Sulak's conduct, in my opinion, was reprehensible and inexcusable for
it was clearly designed as a plan to trap the Company into taking some vigorous,
retaliatory action. However, the Company's response was harmless and mild, as
evidenced by Sulak's version of his conversation with Langford the following day.
Nor did Slovak, the General Counsel's star witness, who had no inhibitions about
trading on his long-standing friendship with Langford, come up with anything sub-
stantial on this point. Thus, the best he could say was, that when he and Langford
attended the National Guard meeting, Langford remarked he though Slovak would
be at the union meeting and Slovak simply answered there was no union meeting
being held that night. Equally innocuous was their followup conversation the
following day.
Sulak's actions not only spell out a case of entrapment, but his testimony, as well
as Slovak's is too insubstantial to justify a finding that the Company thereby engaged
in acts of unlawful interrogation or coercion, or that it created the impression of
surveillance in violation of Section 8(a)(1) of the Act.
Of course, there is no doubt that Langford spoke to about 90 percent of the
employees regarding the filing of unfair labor practice charges and informed the
employees they were free to give any statements to representatives of the Board, but
cautioned them to tell the truth. He also told the employees they were not obligated
to make any statement unless and until they were subpenaed to appear at a hearing.
I consider the latter statement as poor, if not inaccurate, advice. However, the
record fails to disclose any specific instances of interference on the part of the Com-
pany with any alleged attempts by the General Counsel to interview employees or
that it obstructed or hindered any investigation efforts by the General Counsel.
CERTAIN-TEED PRODUCTS CORPORATION 1535
Considering the foregoing statement in the context of his talk with the employees, I
find such statement does not constitute interference with the rights guaranteed em-
ployees in Section 7 of the Act, in violation of Section 8(a) (1) thereof.
The remaining issue centers on the Company's issuance of warning letters to
Schronk and Slovak on June 28, which the General Counsel contends constituted
interference with the Board's trial processes. Schronk's testimony strikes me as
somewhat inconclusive but, in any event, the record shows that Schronk and Slovak
were present at the hearing on June 27, in some capacity other than as witnesses, and
remained until the adjournment thereof, about 6:20 that evening. Although Schronk
and Slovak were scheduled to work the 4 to 12:30 shift that day, neither of them
telephoned their foreman that they would be late in reporting for work until after
the hearing had been adjourned, and they did not actually report until about 7:15
that evening. This resulted in the Company having to retain two employees, at over-
time rates, to cover their jobs. Assuming their presence at the hearing was essential
to the General Counsel's prosecution of the case, nevertheless the Company still
had the right to operate its plant and to expect employees to report for their normal
work shift. Since the General Counsel must have been aware that Schronk and
Slovak were working the evening shift, I fail to see how the presentation of his case
could have been seriously affected by excusing one of them for a few minutes in
order to telephone their foreman they would be late for work, sometime before 4
o'clock, instead of waiting until 6:20, as Schronk did.
I find the failure to give adequate notice to the Company under these circum-
stances entirely inexcusable, and that the warning letters were fully justified. I
further find the whole affair has been grossly overmagnified and I cannot see how
it can be considered as any interference with the General Counsel's prosecution of his
case, violative of Section 8(a) (1).
E. The Suggestion Committee
The amended complaint, in short, alleges that the Company formed a Suggestion
Committee about January 8, 1963, and thereafter Langford and the committee mem-
bers discussed suggestions and grievances concerning wages, hours, and conditions of
employment and that Langford as representative of the committee and the employees
bargained and negotiated with Rhodes with respect to hours, wages, and, conditions
of employment. All in violation of Section 8(a) (2) and (1) of the Act.
Rhodes testified that shortly after he became plant manager in January 1963, many
employees approached him with suggestions and information regarding operating
procedures and since he did not have the time to act upon these matters he decided
to set up a committee composed of hourly paid and salaried employees for the pur-
pose of hearing and evaluating these suggestions. Rhodes had set up a committee
of this type while he was manager of the St. Louis plant, at the same time it had a
collective bargaining-agreement with a union, which functioned in a very satisfactory
manner. In setting up the committee Rhodes designated Langford as a committee
member because the line supervisors were needed on the floor and to grant em-
ployees more freedom to express their suggestions out of the presence of their su-
pervisors. Rhodes further stated the committee was never intended to act as a
grievance committee.
On January 10, 1963, the Company posted a notice on the bulletin board that a
Suggestion Committee had been formed for the purpose of giving the production em-
ployees "an opportunity to offer their suggestions, ideas and comments on our com-
pany policies, practices, benefits and manufacturing techniques" and urged all em-
ployees to submit their suggestions to the committee. (General Counsel's Exhibit
No. 4.) The notice further stated that the committee would consist of nine produc-
tion employees, who were named therein together with the expiration date of their
terms,8 and that the committee would meet every 2 weeks.
Langford said he presided at the committee meetings and any suggestions which
the members felt were meritorious he discussed with the appropriate supervisor, as
well as Rhodes if he believed it necessary. All meetings were held on company
property and the members were paid for attending the same.
Slovak was appointed a member of the original committee and served until
March 1. Prior thereto, Slovak had also served on the plant safety committee.
According to Slovak the first meeting of the committee was held the afternoon of
January 11. Langford opened the session by stating the purpose of the committee
was to discuss and evaluate suggestions coming from the members and any suggestions
8 The notice provided for the rotation of three members every month, with the retiring
member appointing big successor. Three of the original members were to serve until
February 1, three until March 1, and the remaining three until April 1.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approved by the committee would be submitted to Rhodes. At this meeting, or the
next one, Langford cautioned the members to refrain from mentioning any names
in connection with incidents or suggestions presented for discussion . Slovak knew
the Company had a grievance procedure and admitted that at no time did Lang-
ford inform the committee members that the Suggestion Committee was replacing
the grievance procedure or was providing new means for processing grievances.
Slovak said three suggestions were offered at the first meeting ( 1) a new hoist for
the finishing department to handle large pipe, ( 2) a raise for the man on the pipe
crusher, and ( 3) elimination of a dangerous condition existing on a hydrotester.
Langford noted these suggestions and promised to discuss them with Rhodes . Slovak
mentioned there were rumors circulating in the plant regarding the discharge of
Worley, Roberson , and Guthrie and asked Langford to give his opinion as to the
cause of their discharge . Langford replied these three men were the weakest links
in the chain and queried , "If a man with less seniority , is doing his job better than a
man with more seniority , and has more interest in his job, don't you think he would
be worth keeping?" Apparently , the meeting ended with further discussion.
The second meeting was held about January 24 or 25, at which time Langford
reported "approval of the hoist ," and the pay raise for the pipe crusher was being
processed and that the hazardous condition of the hydrotester would be corrected
by the maintenance department as soon as possible. The meeting ended with Langford
requesting the men whose terms expired February 1 to furnish him the names of their
successors so he could post these names on the bulletin board
The third meeting was held about 4 p m. on February 7 or 8. On this occasion
Slovak inquired if the employees had seniority rights in the plant and Langford said
they did. Slovak then stated he did not believe it right for the Company to assign
two senior lathe operators to racking pipe while two men with less seniority operated
the lathes. Langfoid thereupon asked him for further details of the incident including
the names of the employees and the shift foreman , and Slovak complied with his
request. Langford said he would look into the matter and the meeting ended.
Slovak returned to work and around 7:30 that evening Foreman Schriver told
Slovak he was in charge of the department and if Slovak had any complaints about
the way he was running the shift to take it up with him, not Langford or anyone else.
Schriver added this was the kind of incident the Union liked to get hold of, and warned
him not to do it again. On February 11, Langford told Slovak he had discussed the
matter involving the lathe operators with Reeves, superintendent of the finishing de-
partment , and Schriver, and that Schriver had assumed responsibility for the incident.
Shortly thereafter , Reeves told Slovak such incidents occur unintentionally and if
Slovak had any complaints to take them up with him , not Langford , the Suggestion
Committee , nor anyone else. Slovak also admitted that some of the employees
resented his bringing up the subject matter at the meeting, and accused him of trying
to start trouble with the junior men running the lathes.
Billy Johnson , who worked in the finishing department , was named by Slovak as
his successor on the Suggestion Committee and he served as a member thereof during
March , April , and May. As I understand Johnson 's version of events , one of the
committee members; at a committee meeting seemingly held in May , suggested that
shift rotation be reduced from 4 to 2 weeks in the manufacturing and finishing depart-
ments and after some discussion Langford said he would take up the subject with
Rhodes and report back at the next meeting . About 2 days after this meeting
Johnson asked Langford if he had any word on the matter and Langford told him, no,
not yet . Johnson then volunteered he thought the change in shift rotation might help
beat the Union and Langford commented he may have something. It is not clear
whether Langford informed the committee of any decision on the shift rotation sug-
gestion. In any event , according to Johnson , Reeves conducted a poll of the em-
ployees in the finishing department as to whether they preferred shift rotation on a
4-week or 2-week basis , but neither the result of the poll nor the approximate date
it was taken appears in Johnson 's testimony . Again , at a meeting or meetings,
apparently held in May , one of the members asked when they were going to get a
raise and Langford replied a raise would be granted but he did not state the amount
or the effective date thereof . Langford , at one of these meetings , also stated he was
conducting or concluding a survey of wages paid in the area and apparently com-
pared the Company's wage scale and benefits with those paid at a nearby plant.
Langford , at the very outset, advised the committee members they were free to offer
suggestions pertaining to production , efficiency to overall operation , and safety mat-
ters, but they were not to discuss "grievances as such ," because the Company already
had a grievance procedure . Langford placed no restraint upon the members con-
cerning the subjects they could bring up at the meetings , consequently he was un-
aware of the nature of the suggestion until it was actually presented at the meeting.
CERTAIN-TEED PRODUCTS CORPORATION 1537
During the period from about January 11 to June 28, Langford estimated the com-
mittee members made some 300 suggestions, 99 percent of which dealt with problems
concerning maintenance or revision of equipment, which he discussed with the
appropriate department head and suggestions of a substantial nature he brought to
Rhodes' attention. Langford denied that the committee discussed grievances and in
respect to the incidents related by Slovak and Johnson, he testified as follows.
Toward the end of one of the meetings Slovak asked if the Company was still
following its seniority policy and Langford replied that it was. Slovak thereupon
stated that two men with less seniority were operating lathes while two men with
greater seniority were performing other duties. Langford said he would look into
the matter but needed information regarding names, dates, and places, which Slovak
supplied. The next day Langford checked with the payroll clerk and found that all
four men were lathe operators and all were receiving the pay rate for that classifica-
tion at the time in question. Langford informed the committee of these facts and
that ended the matter.
Another suggestion was made that a classification study should be made of the
jobs performed by the crusher operator, coupling tester operator and hydro-
tester operator. Langford knew the industrial engineer was already conducting a
study of the crusher and coupling tester jobs, so he told the committee he would
refer the matter to the industrial engineer.
At one of the meetings one of the members suggested that they would like shifts
to be rotated every 2 weeks instead of every 4 weeks. Langford advised Rhodes of
this suggestion and 3 or 4 weeks later the formen polled the employees on their
shifts regarding their preference and reported the results to Shaw, the production
superintendent.
Langford stated it was common knowledge among the employees that he was
conducting a wage survey around March or April, the same as he had the year
before, and he mentioned the fact at meetings of the Suggestion Committee, the
Safety Committee, and to employees, individually, at the plant. As a result of
the survey a general wage increase was granted on June 1.
Langford admitted having a conversation with Slovak regarding the discharge
of Worley, Roberson, and Guthrie along the same line as related by Slovak.
Finally, the only conclusion to be drawn from the undisputed evidence is that
the Company initiated and formed the Suggestion Committee. Therefore, the only
questions to be resolved are (1) whether the committee is a labor organization and
(2) whether the Company dealt with the committee concerning wages, hours, or
conditions of employment.
Section 2(5) of the Act defined a labor organization as:
. . . any organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for the pur-
pose, in whole or in part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or conditions of work.
Here, the formal notice announcing the formation of the committee makes it clear
that the purpose of the committee was to present suggestions to the Company on
behalf of all the employees upon subjects clearly pertaining to conditions of work.
Thus, Langford, in line with the expressed objectives of the committee, conceded
the members discussed such subjects as "means of increasing production, efficiency
or the overall operation, safety hazards and things of that nature." Again, the
testimony shows that committee members specifically presented complaints or
inquiries regarding the Company's seniority policy as it related to job assignments, job
classifications, and the rotation of work shifts. While it may be true these complaints
or inquiries were made spontaneously, still Langford made no attempt to cut off
further discussion of these matters or to caution the members they were not proper
subjects for consideration by the committee. Indeed, Langford accepted these com-
plaints and as a consequence, he himself, disposed, of the seniority matter, while
the questions of job classifications and shift rotation were referred to appropriate
company officials for determination.
There is no doubt, of course, the Company created the Suggestion Committee.
It is equally clear that the Company's action was not prompted by any desire to
thwart organization of its employees for the simple reason that the Union was not
engaging in any organizational activities at that time, or at any time subsequent to
the election of July 26, 1962. Nor did the Suggestion Committee 'perform the
normal functions of a union , in that it sought or obtained recognition as the ex-
clusive bargaining representative of the employees, or that it engaged in any bargain-
ing negotiations with the Company. Moreover, there is no foundation in law or
756-236-65-vol. 14 7-9 8
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact for the unusual allegation that Langford as representative of the commitee and
the employees engaged in bargaining negotiations with Rhodes with respect to hours,
wages, and conditions of employment . While I am convinced the Suggestion Com-
mittee was a harmless and ineffective organization , I find it meets the broad technical
requirements of a labor organization and since it was formed and maintained by the
Company , at least in part, for the purpose of dealing with it concerning conditions of
employment , the Company thereby engaged in unfair labor practices within the mean-
ing of Section 8 (a) (2) and ( 1) of the Act .9
F. The consolidated and reopened hearing
After the close of the hearing on June 29, 1963 , Shippey filed new charges and
amended charges on July 19 and August 2, and on August 12 the General Counsel
issued another complaint, Case No. 16-CA-1905. Following various motions, I
reopened the hearing and consolidated the cases . The new complaint , as finally
amended , alleged that the Company hired new employees after June 28, and dis-
criminatorily refused to reinstate, rehire, or recall Guthrie , Hopgood, and Worley
because they had testified unfavorably to the Company, plus alleged acts of inter-
ference , restraint , and coercion . As stated at the outset , the reopened hearing was
held at Hillsboro, Texas, on October 1, 2, and 3, 1963, and about November 18,
1963 , the parties filed supplemental briefs.
The Company, pursuant to subpoena duces tecum, furnished the General Counsel
with a list containing the names and dates of all employees hired between January 1
and September 23, 1963, plus the transfer of two employees, which the parties ac-
cepted as true and correct, and which was received in evidence as General Counsel's
Exhibit No. 61. This exhibit, plus Langford's testimony thereon, shows that the
Company hired 26 new employees, as laborers, at $1.81 an hour, in the interval
July 1 to September 16, 1963, broken down as follows:
On July 1, the Company, in line with its past practice, employed three students,
McBrayer, Junior, Wallace, and Lynch, Junior, as temporary vacation replacements.
On July 19, a fourth student , Reese, was hired in the same capacity . Between
August 29 and September 13, all of the students resigned, except Wallace, who
decided not to return to school and was made a permanent employee on September 9.
Wallace testified he knew the job was temporary when he was hired and when he
elected not to return to school his request for a permanent job was granted.
On July 23, 24, and 26, 12 casual employees, students, were hired. All of these
casuals were terminated on August 23, except one, and he was terminated Septem-
ber 6. Langford explained these employees were hired for a "one shot operation,"
to coat pipe , destined for export , with a preservative.
On September 9, Hayes and Davis were hired as temporary employees in the manu-
facturing department . Langford stated Hayes and Davis were told they were
covering for employees who were absent because of injuries and when these employees
returned they would be terminated or placed in other jobs, if any were available.
Davis corroborated Langford's testimony concerning the temporary nature of his
employment. Hayes could not recall what Langford stated at the time he was hired,
but he believed the job would be permanent.
On September 16 the Company hired four casual employees, Knox, Smith, Walker,
and Bradshaw to assist in the coating of pipe for export. Langford estimated the
job would require about 3 or 4 weeks from the date he testified, October 2, at which
time they would be terminated, unless the Company received additional export orders.
Knox testified Langford told him the job would last from 4 to 6 weeks but it could lead
to a steady job.
On the following dates the Company hired four employees on a permanent basis
to fill existing vacancies in the manufacturing and finishing departments: Timothy
Mitchell and Troy Lewis on September 9, Wallace Loewe on September 13, and
James Russell on September 16.
With respect to the transfers, Langford testified that the Company had an open-
ing for a boiler operator, in the maintenance department, and on July 2, 1963, it
posted the vacancy on its bulletin board. Thereafter, D. U. Plunkett, who had been
employed in the manufacturing department since October 1961, and O. W. Bledsoe,
who had been employed in the finishing department since August 1961 , applied for
the vacancy . It is not clear whether two job vacancies were posted but, in any event,
the Company selected Plunkett and Bledsoe because it was just as easy for two men
and, also, in order to bring up its boiler operators to full strength , namely, four men.
Upon their transfer, both men received pay increases from $2.13 to $2.22 per hour.
9 N L.R B. v. Cabot Carbon Company, at ad., 360 13 S. 203.
C)
CERTAIN-TEED PRODUCTS CORPORATION 1539
Bledsoe said he told Langford that he had voted in favor of the Union in the elec-
tion and had made no secret of that fact among the employees and supervisors.
Plunkett was not questioned regarding his union activities.
Thus, according to Langford's accepted testimony, the Company presently em-
ployed 85 permanent employees, plus the 4 casual and 2 temporary employees. As
noted at the outset, the Company employed approximately 100 employees at the time
of the election, July 26, 1962.
Shippey testified that he checked the names of the 26 newly hired employees against
his union records and found that none of these employees had ever signed cards or
engaged in any union activity on behalf of the Union. Indeed, this is a startling
revelation in view of the fact that none of these new hires had ever previously worked
for the Company and Shippey had engaged in no organizational activities since the
election of July 26, 1962. This testimony strikes me as one of the many enigmas of
the case. However, the General Counsel, in supplemental brief, attached great
significance to this testimony for it indicates the Company's desire to hire only non-
union men, which in turn warrants the inference of hostility to the Union or some
other kind of unlawful conduct. I find no merit or substances in this argument, and
apparently the only way the Company could have satisfied the General Counsel
was to have obtained its new employees through referral by Shippey.
As further proof of illegal motivation, the General Counsel claims that Langford
interrogated Walker and Davis regarding their union membership at the time they
were hired.
Walker testified Langford asked if he was a union man and he told him no.
On cross-examination, Walker stated he had worked as a janitor-chauffeur for W. M.
Cameron Company during 1957 and 1958, as appears in his application for employ-
ment. He further stated that Cameron was a union plant insofar as the millworkers
were concerned, but he did not work in the mill and was not a member of the Union.
Walker's second version of his conversation with Langford was that Langford asked
if he had any objection to work in a nonunion plant and, apparently, he told him no.
Langford testified he knew Cameron had a'union contract and he asked Walker if
he had any objection to working in a nonunion plant. Walker said he had no objec-
tion at all.
Davis said that his employment interview took place on September 9, and after
he had been hired, Langford said he would probably be approached by employees
who favored the Union as well as those who opposed it and that he should give them
a yes or no answer concerning his attitude toward the Union.
I find nothing in the testimony of Walker, Davis, or Langford indicating unlawful
interrogation or union animus.
G. The Company's refusal to rehire or reinstate Hopgood, Guthrie, and Worley
As found above, Hopgood's employment ceased on February 1, at which time he
was employed as a machinist at $2.55 an hour and found similar employment at $2 90
an hour.10 Hopgood filed applications for employment with the Company in July,
August, and September and, admittedly, he placed no restrictions on the type of work
he desired.
By letter dated September 5, Attorney Eckhardt advised Attorney Smith that:
Worley, Guthrie and Hopgood are presently interested in, and available for,
employment in any type of work which may be available in the future at the
Company's Hillsboro plant, regardless of whether such work is permanent or
temporary, or full-time or part-time.
Thereafter, Langford sent Hopgood a telegram, dated September 10, offering him
employment as a material handler at $1.86 an hour and advising him to report for
work on September 13. The telegram concluded that his failure to report would
indicate he had declined the offer.
By letter dated September 11, Hopgood informed Langford that he declined the
offer for the reason that "my experience has been mostly in mechanical work and
I don't think I could improve my position by taking it." He ended by saying he had
informed Guthrie of the offer and that he was interested in the job.
Hopgood also reaffirmed his position regarding reemployment as expressed in his
earlier testimony and statement given to Examiner Vasse. (Respondent's Exhibit
No. 5) :
I would consider returning to my former employment with Certain-Teed if it
was understood that I would do machine work until it was fully caught up and
then perform maintenance work until-only after such machinist work was
fully completed.
10 At the reopened hearing Hopgood said he was earning $2.80 an hour on his new job.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of course , these are the same terms under which he claimed he was originally hired,
but which, unfortunately, were changed by intervening circumstances.
The General Counsel cavalierly disposes of the Company's job offer as, per se,
lacking in good faith. He also contends the Company should have offered Hopgood
one of the boiler operator jobs instead of giving them to Plunkett and Bledsoe. I
cannot see how the Company was under any obligation to make such an offer to
Hopgood. In any event Hopgood made it .plain that he was not interested in this
type of work. Since the Company has not hired any machinists or mechanics that
is about the only position the General Counsel could take.
I find the Company did not discriminatorily refuse to reinstate, rehire, or recall
Hopgood in violation of Section 8(a)(1), (3 ), or (4) of the Act.
Worley and Guthrie
Worley was named as a discrirminatee in the original charge (Case No. 16-CA-
1864), but his name was omitted in the initial and consolidated complaints, as
amended. The General Counsel at the reopened hearing, in outlining the theory
of his case regarding Worley, stated that Worley had been eliminated from the earlier
complaints because of the lack of sufficient evidence to establish company knowledge
of his union membership or activity. As I understand the broad allegations of the
complaint, as amended (Case No. 16-CA-1905), the General Counsel does not
contend that Worley's discharge on January 4 was discriminatory, and on at least
two occasions while Worley was testifying the General Counsel clearly stated, "We
are not claiming [alleging] he was discriminatorily terminated." The issue, there-
fore, as I see it, is whether the Company refused to rehire Worley, during the period
it was hiring new employees, because he testified at the first hearing. Despite his
pious declarations, the General Counsel devotes much time in his supplemental
attacking the pretextuous and illegal character of Worley's discharge.
Worley's union activities consisted of signing a card for both unions, Shippey and
the Gypsum Workers, sometime in 1962.
On January 4, Worley was terminated for the reason, "Since revising equipment,
no longer need the services of three floormen." According to Langford's testimony
and the Company's records, which I accept and credit, Worley was discharged be-
cause he was not a reliable employee, was absent 22 days in 1962, never received a
merit increase, and had been recommended for discharge by his foreman on Novem-
ber 8, 1962. Worley's efforts to picture himself as a competent employee, with a
good attendance record, were neither convincing nor impressive. Again, Worley ad-
mitted that when he asked Hubbert, on January 5, why he had been terminated,
Hubbert replied the Company had to eliminate three men and he, Guthrie, and
Roberson "could not do your jobs."
Commencing about May 14, 1963, Worley filed applications for employment about
every 30 days, the last one being submitted on September 14.
The Company admits it did not reinstate Worley because he had been terminated
and was not eligible for reemployment.
The General Counsel advances the same theories and arguments regarding Worley
as he did in Guthrie's case. He persists that Worley was laid off, not discharged,
and therefore his layoff, as well as his recall, should have been governed by the
Company's layoff and recall policy. I find no merit in this argument. Nor do I
find any substantial evidence to support the allegation that Worley was denied rein-
statement because he gave testimony on behalf of the General Counsel.
Guthrie added nothing to his case at the reopened hearing, other than, he, like
Worley, regularly filed applications for reemployment with the Company from about
June 20 to September 14.
However, the General Counsel, in his supplemental brief resurrects an incident
which occurred at the first hearing (and ignored in his first brief), in a. desperate
effort to show that the Company's failure to recall Guthrie was violative of Section
8(a) (4). The incident, as described,by the General Counsel, centers on a remark
made by Anderson to Guthrie, "immediately after Guthrie testified as the General
Counsel's witness, i.e., Anderson: `This old boy from Georgia (Respondent's Coun-
sel) is going to tear you a new ass tomorrow."' This is a complete distortion of
the testimony. Actually Guthrie, who testified on June 27, stated that Anderson
made this remark to him at the adjournment of the hearing on June 25, and that he
retorted, "Well, you'd better tell him to try. I've rode bigger horses than he is." I
summarily struck this testimony. The General Counsel then took the position that
Anderson's remark indicated an attempt to affect the testimony of his witnesses and
to interfere with the Board's processes. I reaffirmed my ruling that this was nothing
but trial by innuendo and that ended the matter. The General Counsel concedes
there was no specific allegation in his consolidated complaint that would warrant
v
CERTAIN-TEED PRODUCTS CORPORATION 1541
the receipt in evidence of Anderson's remark, nevertheless this testimony now in-
dicates unlawful motivation or interference.
I still stand by my ruling. I further find and conclude that while Anderson's com-
ment may have been unnecessary, it was not coercive and does not justify the far-
fetched inference drawn by the General Counsel.
The General Counsel further claims the Company discriminatorily postponed
the hiring of new employees from January 4 until after the close of the first hearing.
The testimony for this assertion comes from Divin, who, at the first hearing, related
a conversation with Foreman McBrayer during which McBrayer stated:
that we were short handed. He said that if it were up to him that he'd hire
about-they probably wouldn't hire anybody until after the hearing, but, if
it was up to him, that he would get all the help he needed, or that if he needed
help he'd go ahead and get it.
McBrayer, according to Divin, also stated that "The guys around here think that if
the place goes union that they can't get fired."
McBrayer could not recall having any such conversation with Divin.
From my observation of the witnesses, I accept McBrayer's denial that he ever
had any such conversation with Divin. But, assuming McBrayer did make the
statements attributed to him by Divin, they are wholly insufficient to support the
General Counsel's position.
The General Counsel also attempted to support his contention through Slovak.
In his final appearance as a witness in rebuttal, Slovak examined a list containing
the names of 32 employees, practically all of whom worked in the finishing depart-
ment.ii Slovak then stated that at various times he had worked with, or observed,
most of these employees perform temporary work, from 1 to 3 days a week, in the
manufacturing department. These temporary assignments consisted almost ex-
clusively in helping to change mandrels, which takes about 2 or 3 minutes. Slovak
also expressed the opinion that when sales increased, apparently after January 1963,
"there was not sufficient help there in the manufacturing department to keep operat-
ing the machinery and change mandrels also."
Clearly, Slovak, despite his lack of any qualifications whatever, assumed the role
of an expert in plant operation and personnel and did nothing more than deliver
a critique on the inefficient manner in which the Company was running its manu-
facturing and finishing department. I attach no weight to his presumed expertise
and find nothing in his testimony which remotely sustains that allegation that the
Company discriminatorily postponed the hiring of new employees until after the
conclusion of the first hearing.
Alleged Acts of Interference, Restraint, and Coercion
In ibrief, the amended complaint alleges that on various dates between July 10 and
September 23, 1963, the Company threatened, coerced, and directed discriminatory
disciplinary action against employees because they had given testimony under the
Act and exercised the rights guaranteed in Section 7, all in violation of Section
8(a)(1).
Sulak related a conversation he had with Langford about the middle of July in
which Langford stated he could not believe it was Sulak who testified at the first
hearing. Sulak said he was sorry that he had to do so, that he was not concerned
about Worley or Hopgood being reinstated, "I just did it to straighten up the place."
Sulak stated on July 25 Foreman Schriver told Sulak and another employee to load
a table as they were not doing anything at the time. Sulak replied a lot of employees
were not doing anything and it was his job to run the hydro. Sulak did not load
the table and, apparently, Schriver told him to run the hydro.
On July 26, Sulak was called to the office where Langford, with Reeves and
Schriver present, handed him a warning letter regarding his refusal to carry out
Schriver's instructions and the fact that he had been 6 minutes late reporting back
from his work break. The letter concluded by stating further violation of company
rules would be ground for disciplinary action. Sulak gave his version of the incidents,
that he did not refuse Schriver's instructions and that other men overstayed their
rest period. The meeting ended with Sulak asking how long the warning would
remain in his file and Langford replied, "1 year."
"These 32 names were listed in a subpoena ditces tecum, dated September 26, 1963,
issued by the General 'Counsel (General Counsel's Exhibit No. 73), which called for the
production of books, records, and documents indicating the dates and period these in-
dividuals worked in the manufacturing department between December 2, 1962, and
September 24, 1963.
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel attacks the warning concerning Sulak's refusal to carry out
instructions on the grounds that the letter refers to his conduct as a violation of rule 8
of the Company 's personal conduct and safety rules, which covers bookmaking and
gambling, instead of rule 6, which embraces the violation involved. Obviously, the
numerical error was understood by everyone except the General Counsel, and he
now argues that this error demonstrates the untrustworthiness of Langford as a
witness and "Absolute proof of the falseness of this unjustifiable indictment of
Sulak ." Manifestly , this is desperation argument.
On August 9, Sulak informed Reeves and Langford that Schriver had accused him
of making a false report . Langford replied Sulak was "all shook up and getting
scared . and there isn 't anybody after you ." Langford then mentioned some-
thing to the effect that when Sulak was testifying he sounded like he was trying to
get Langford 's job, which Sulak denied The conversation ended with Langford
stating that Sulak had been wrong only once in his testimony , when he made some
reference to peddling union cards on company property instead of company premises.
On Friday , September 20, Sulak was working the 4 p .m. to 12:30 a .m. shift and
about 11: 15 Schriver told him the shift was going to work overtime . Sulak said
he could not stay over because he had many important things to do the next day.
About an hour later , Schriver and Foreman Davis asked if he was staying over
and Sulak told them, "No, that I didn't feel good and I had too many things that
I wanted to do tomorrow ." Schriver stated they had no one to replace him. Sulak
left his job at the end of his shift.
When Sulak reported for work on Monday, September 24, he was called to the
office where Langford handed him a letter, dated September 24, stating that since
this was his second offense for refusing to carry out his supervisor 's instructions he
could be summarily dismissed ; however, he was being suspended for 4 days with-
out pay. Sulak returned to work at the end of his suspension period. On cross-
examination , Sulak reluctantly admitted he could have been fired for quitting his
shift. He tried to qualify his action by stating he did not feel good at the time, but
he conceded he did not request permission to go on sick leave.
Shippey testified that during his investigation of the case he talked with Sulak and
as Sulak was worried and concerned about his job, he told Sulak , in jest, that he
would be glad to let him have his job as organizer . Shippey also told Sulak that if
he should be discharged he "would follow through and try to get him back to work."
Slovak said about July 23, Anderson reminded him , of the time he broke two belts
while working the manufacturing department and Gear wanted to fire him, but
Langford saved him. Continuing , Anderson said , "Now you testify against him,
you should have been fired."
Slovak also related that he telephoned Langford on September 10 to inform him
that he had been subpenaed by the General Counsel , in order to avoid any trouble
regarding his work shift, as had ocurred at the first hearing. Later, Slovak showed
his subpena to Anderson who commented he was in Langford 's office when Slovak
was "crying" to Langford and "It goes to show what kind of a man you are."
Slovak further stated Attorney Smith spoke to him on September 30 and asked
what they were trying to prove. Slovak replied he did not know, it was up to the
lawyer.
Sulak's testimony not only negates the idea that his warnings and disciplinary
layoff had any connection with his having given testimony at the first hearing, but
demonstrates they were fully justified and brought about by his own misconduct.
Indeed , as Sulak reluctantly conceded , the Company had ample cause to summarily
fire him for his second offense for refusing to obey his supervisor 's instructions.
Instead , the Company treated him with leniency and merely suspended him for
4 days. Nor do I consider Langford 's remark to Sulak, about the middle of July,
expressing surprise or disappointment because he had appeared as a witness, to be
coercive or threatening . Certainly , the subsequent treatment accorded Sulak dis-
pels the notion that Langford had any intention or design of retaliating against
Sulak by reason of his previous testimony.
Equally unimpressive and unconvincing in establishing threats or coercion is
Slovak 's testimony concerning his conversation with Anderson about July 23 and
September 10.
Nor do I find any foundation for the General Counsel 's broadside accusation in
his brief that before and during the first hearing, and in the interval between the first
and reopened hearings, the Company engaged in conduct designed to impede and
obstruct the Board 's investigative and trial processes and to interfere with the rights
of employees to participate in such proceedings. This position , insofar as the earlier
case, is nothing but a rehash of old arguments and I have already made my findings
concerning events supposedly occurring prior to and during the first hearing. I fur-
CERTAIN-TEED PRODUCTS CORPORATION 1543
ther find and conclude that no substantial evidence was adduced at the reopened
hearing to support the above-mentioned allegation of the last complaint, as amended.
Moreover, the evidence, both record and otherwise, convinces me that the Company
did nothing to impede the General Counsel's alleged investigation of the case, or
cases, but that it cooperated with him in securing the attendance of his witnesses at
the hearings and complied with the terms of various subpoenas duces tecum which
it could have lawfully, and in good faith, resisted.
I, therefore, find the Company did not engage in any conduct of the aforesaid
character as alleged in the complaints, as amended.
The Documentary Evidence
In an effort to prove his theory that Guthrie was discriminatorily laid off, that
the postponement of hiring new employees and the failure to reinstate Guthrie and
Worley was discriminatory, the General Counsel introduced voluminous informa-
tion obtained from an inspection of timecards of employees working in the manu-
facturing department, which I received in evidence as General Counsel's Exhibits
Nos. 45(1) through (95).
The General Counsel's analysis of this data, covering the period from Decem-
ber 2, 1962, to September 22, 1963, purports to show, on a weekly basis, the num-
ber of employees, total hours worked, both regular and overtime, the ratio of over-
time to regular hours and the average number of hours worked per week per
employee As a result of his study and analysis the General Counsel concludes the
Company operated its manufacturing department, in the period January 4 to June 30,
1963, "with slightly more than one man short" (it had about 20 or 21 employees)
and it "has offered no plausible explanation for operating" the department in this
manner. Seemingly, this situation, per se, constitutes discrimination. Further, the
General Counsel by tortuous reasoning, which embraces employment conditions prior
and subsequent to the first hearing, mathematical formulas, plus Slovak's reference
to temporary work assignments, winds up with the declaration that all this refutes
the Company's contention that it did no require the services of Guthrie or Worley,
apparently at the time of their discharge or anytime thereafter. All this amounts to
nothing more than criticism of the inefficient and uneconomical manner in which
the Company conducted its business. However, neither the theory nor the so-called
supporting evidence established a case of discrimination, nor does the shift of the
burden of proof to the Company show that Guthrie's discharge was lawful and its
subsequent refusal to hire Guthrie and Worley was based on nondiscriminatory
grounds.
I consider the foregoing records as unpersuasive, if not immaterial, to prove the
point for which they were offered and received in evidence. I, therefore, reaffirm
my findings that Guthrie and Worley were discharged for good cause on January 4,
1963, and the Company's subsequent refusal to rehire or reinstate them was for
reasons other than their union membership or activities.
IV. THE REMEDY
Having found the Company initiated, formed, and dominated the Suggestion Com-
mittee, that the Company, at least on occasions, has recognized and dealt with the
committee on matters pertaining to wages, hours, and conditions of employment,
and as there is no evidence indicating it is not presently recognizing and dealing
with the committee, I shall recommend that it cease and desist from recognizing
and dealing with the committee and that it completely disestablish it. Since I have
found no other unfair labor practices, I shall not recommend a broad cease-and-
desist order.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Certain-Teed Products Corporation is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. United Stone and Allied Products Workers of America, AFL-CIO, and the
Suggestion Committee are labor organizations as defined in Section 2(5) of the Act.
3. By initiating, forming, and dominating the Suggestion Committee the Com-
pany has engaged in and is engaging in unfair labor practices in violation of Section
8(a)(2) and (I) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Except as found above, the Company has not engaged in unfair labor practices
as alleged in the consolidated complaint, and the complaint, as amended.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I recommend that the Respondent, Certain-Teed
Products Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation and administration of the Sug-
gestion Committee or any other labor organization.
(b) Recognizing or dealing with the Suggestion Committee, or any successor
thereto, as a representative of any of its employees for the purpose of discussing or
negotiating with it concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment.
(c) In any like or related manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Withdraw and withhold all recognition from, and completely disestablish,
the Suggestion Committee as the representative of any of its employees for the
purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment.
(b) Post at its Hillsboro, Texas, plant, copies of the attached notice marked
"Appendix." 12 Copies of said notice, to be furnished by the Regional Director for
the Sixteenth Region, shall, after being signed by an authorized representative of
the Respondent, be posted immediately upon receipt thereof, and be maintained
by it for 60 consecutive days from the date of posting, in conspicuous places, in-
cluding all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director, in writing, within 20 days from the date of
the receipt of this Decision, what steps the Respondent has taken to comply herewith.13
It is further recommended that unless on or before 20 days from the date of the
receipt of this Decision and Recommended Order, the Respondent notifies the said
Regional Director, in writing, that it will comply with the above Recommended
Order, the National Labor Relations Board issue an order requiring it to take such
action.
It is further recommended that the consolidated complaint and the complaint,
as amended, be dismissed insofar as they allege the commission of unfair labor prac-
tices, except as specifically found herein.
12If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order"
11 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the First Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE HERESY DISESTABLISH the Suggestion Committee as the representative of
any of our employees for the purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other conditions of
employment, and we will not recognize it or any successor for any of the above
purposes.
WE WILL NOT initiate, dominate, or interfere with the administration of any
labor organization or contribute support to it.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed to them in Section 7 of
the Act.
BRENNAN'S, INC. 1545
All our employees are free to become or remain members of any labor organiza-
tion, or to refrain from such action.
CERTAIN-TEED PRODUCTS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of,posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Meacham
Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211,
Extension 2131, if they have any question concerning this notice or compliance with
its provision.
Brennan's, Inc. and Hotel , Motel and Bartenders Local 166,
AFL-CIO. Case No. 15-CA-2311. June 30, 1964
DECISION AND ORDER
On February 12, 1964, Trial Examiner Ramey Donovan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. He also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
dismissal of these allegations. Thereafter, the General Counsel and
the Respondent filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in the case, including the Decision, the exceptions, and briefs,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the additions and modifications noted
hereafter in our opinion and Order.'
We concur in the Trial Examiner's conclusions that Respondent,
through members of the Brennan family and other supervisors, en-
gaged in a campaign to defeat union organizational attempts at its
restaurant and engaged in such illegal conduct as : threatening em-
ployees Crooks and La Fleur with bodily harm ; threatening to fire
employees if they supported the Union; promising employees either
1 Contrary to the majority, Member Jenkins would find the evidence Insufficient to es-
tablish that La Fleur's discharge was attributable to his union activity, and, accordingly,
would not find a violation of Section 8(a) (3) in this regard.
147 NLRB No. 164.