Columbus Marble Works

National Labor Relations Board - Board Decisions

Mar 29, 1955

111 N.L.R.B. 1162 (N.L.R.B. 1955)

1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and if an understanding is reached embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees of the Mayaguez factory ex-
cluding executive, administrative, office clerical and professional personnel,
guards, watchmen, and supervisors as defined in Section 2 (11) of the
National Labor Relations Act as amended.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization, except to the extent above-stated.
MAURICE EMBROIDERY WORKS, INC.,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
T. A. MCGAHEY , SR., T. A . MCGAHEY, JR., MRS. ALTIE MCGAHEY
JONES, AND MRS. WILDA FRANCES MCGAHEY HARRISON , D/B/A CO-
LUMBUS MARBLE WORKS, A PARTNERSHIP and THE AMERICAN FED-
ERATION OF LABOR. Case No. 15-CA-544. March, 09, 1955
Decision and Order
On September 9, 1954, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed in these re-
spects. Thereafter, the Respondents and the General Counsel filed
exceptions and supporting briefs.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications :
1. The Trial Examiner found that Respondent T. A. McGahey, Sr.,
engaged in surveillance of the union meeting held in mid-December
1952, and thereby violated Section 8 (a) (1) of the Act. We do not
agree.
The record shows that the Union had scheduled a meeting for the
Respondents' employees at a hall located in a neighborhood shopping
center a few blocks from McGahey's residence ; and that McGahey was
seen parked in his car across the street from the hall when the meeting
111 NLRB No. 195.
COLUMBUS MARBLE WORKS -1163
was scheduled to begin and "when most of the stores in the shopping
center would usually be closed." i There is no clear or direct proof
that McGahey had engaged in surveillance. At best, the evidence is
ambiguous and requires the drawing of an inference of illegal conduct
from McGahey's mere presence across the street from the hall when
most stores in the vicinity were closed. On the other hand, the fact
that McGahey lived only a few blocks away and-that some of the stores
may have been open while McGahey was parked tends to negate the
inference of surveillance. Moreover, because of his illness, McGahey
was unable to testify at the hearing and to offer any explanation for
his presence in the shopping center. In view of the foregoing, we are
not convinced that it has been established by a preponderance of the
evidence that McGahey was engaged in illegal surveillance. Accord-
ingly, we shall dismiss the allegation of the complaint charging the
Respondents with surveillance in violation of the Act.2
2. The Trial Examiner found, and we agree, that the Respondents
discriminatorily discharged employee Belton Hollinger on October 6,
1952, and thereafter failed and refused to reinstate him until July 13,
1953, because of his known or suspected support of the Union. In
making this finding, the Trial Examiner made no reference to Mc-
Galley's threat to Hollinger to "blackball" all supporters of the
Union-a threat which the Trial Examiner found constituted a viola-
tion of Section 8 (a) (1) of the Act. As this threat furnishes addi-
tional support to the Trial Examiner's finding, we also rely upon it
to find that the Respondents had discharged and failed to reinstate
Hollinger in violation of Section 8 (a) (3) and (1) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders the Respondents, T. A. McGahey, Sr.,
T. A. McGahey, Jr., Mrs. Altie McGahey Jones, and Mrs. Wilda
Frances McGahey Harrison, d/b/a Columbus Marble Works, A Part-
nership, Columbus, Mississippi, their agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in the American Federation of La-
bor, or any other labor organization, by discharging or refusing to
I McGahey parked between 7 . 30 and 8 p in , according to the testimony of the various
General Counsel 's witnesses who saw him . The Southern Drug Store in the shopping
center, customarily closed between 7. 30 and 8 p in. On the night of the meeting, one
witness went to the drug store approximately between 7 : 30 and 7 : 40 but found it closed.
When he returned to the union hall at about 7. 40 , he did not see MeGahey's car.
2 Member Murdock believes that the Trial Examiner 's inference that MeGahey was en-
gaged in surveillance on this occasion is a reasonable one, particularly in view of the
other unlawful acts of McGahey. Accordingly , be disagrees with the reversal of the
Trial Examiner on this point
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate any of their employees, or discriminating in regard to their
hire, tenure of employment, or any term or condition of employment.
(b) Interrogating their employees regarding their union activities,
affiliations, or sympathies, or how they intend to vote in a Board-cdn-
ducted election in a manner constituting interference, restraint, or co-
ercion in violation of Section 8 (a) (1) of the Act.
(c) Threatening ldss of employment or other reprisals against their
employees because of their membership in or assistance to the Union
named above, or any other labor organization.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Charlie Dean Ferguson immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
(b) Jointly and severally make whole Charlie Dean Ferguson and
Belton Hollinger for any loss of pay they may have suffered by reason
of the Respondents' discrimination against them, in the manner set
forth in the section of the Intermediate Report entitled "Recommen-
dations."
(c) Upon request, make'available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze and compute the
amount of back pay due under the terms of this Order.
(d) Post at its plant at Columbus, Mississippi, copies of the notice
attached to the Intermediate Report and marked "Appendix C." 3
Copies of the said notice, to be furnished by the Regional Director for
the Fifteenth Region, shall, after being signed by the Respondents'
representative, be posted by them immediately upon receipt thereof
and maintained by them for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the said Regional Director, in writing, within ten (10)
days from the date of this Order, what steps they have taken to comply
herewith.
3 This notice is amended by substituting for the words "The Recommendations of a Trial
Examiner" the words "A Decision and Order ," by adding after the word "election" in line
2 of paragraph 2 the words " in a manner constituting interference , restraint or coercion
in violation of Section 8 (a) (1) of the Act" ; and by deleting paragraph 4 regarding sur-
veillance In the event that this order is enforced by decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
COLUMBUS MARBLE WORKS 1165
IT IS FURTI-IER RECOMMENDED that the complaint insofar as it alleges
that the Respondents have violated the Act by (a) promising their
employees wage increases if they voted against the Union; (b) discrim-
inating against Johnnie Bond; and (c) engaging in surveillance, be,
and it hereby is, dismissed.
Intermediate Report
STATEMENT OF THE CASE
This proceeding involves allegations that T. A. McGahey, Sr., T. A. McGahey, Jr.,
Mrs. Altie McGahey Jones, and Mrs. Wilda Frances McGahey Harrison, d/b/a
Columbus Marble Works, A Partnership, Columbus, Mississippi, herein called the
Respondents, interfered with, restrained, and coerced their employees in certain
specific respects in September, October, and December, 1952, discharged employee
Charlie Dean Ferguson on or about September 23, 1952, employee Belton Hollinger
on or about October 6, 1952, and employee Johnnie Bond on or about December 19,
1952, and failed and refused to reinstate them (except that Bond was reinstated on
or about January 14, 1953),' because of their membership in and activities on behalf
of the American Federation of Labor, the Charging Party, herein called the Union,
and because they engaged in concerted activities with other employees for the pur-
poses of collective bargaining and other mutual aid and protection. It is alleged
that such conduct violated Section 8 (a) (1) and (3) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act. After the issuance of a complaint and an
amended complaint by the General Counsel 2 and the filing of an answer by Re-
spondents McGahey, Sr., and McGahey, Jr., a hearing was held before me at Colum-
bus, Mississippi, on various dates between January 11 and February 12, 1954, both
dates inclusive. All parties were represented and participated fully in the hearing.
Respondents Jones and Harrison adopted as their own the answer previously filed
by Respondents McGahey, Sr., and McGahey, Jr. At the close of the hearing, the
Respondents moved to dismiss the complaint. Ruling on this motion was reserved.
For the reasons set forth below, it is now denied. The Respondents and the General
Counsel filed briefs, which have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents are partners doing business under the trade name and style of
Columbus Marble Works. They are engaged at Columbus, Mississippi, in the manu-
facture and sale of monuments, markers, and all types of cemetery memorials.
During the 12-month period ending October 31, 1952, which period is representative
of all times material herein, the Respondents purchased raw materials valued at
not less than $225,000 from points outside the State of Mississippi. During the same
period, the Respondents sold finished products valued at not less than $700,000, of
which approximately 75 percent was shipped to points outside the State. It is
accordingly found that the Respondents were, at all material times, engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE RESPONDENTS' MOTION 10 DISMISS
The original charge herein was filed on October 27, 1952. It alleged the dis-
criminatory discharges of Hollinger and Ferguson. The record shows that Hollinger
and Ferguson were separated from the Respondents' employ on October 6 and
September 22, 1952, respectively. The charge named as respondent "Columbus
'At the hearing, the complaint was amended to indicate that Hollinger was reinstated
on or about July 13, 1953
2 The designation General Counsel includes the General Counsel of the National Labor
Relations Board and his representative at the hearing
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marble Works" and a copy was sent by registered mail to the office of the Re-
spondents on October 27, 1952. On December 19, 1952, the first amended charge
was filed, alleging the same unfair labor practices and the additional discriminatory
discharge of Bond. The record shows that Bond's separation occurred on December
18, 1952. This charge likewise named as respondent "Columbus Marble Works"
and again a copy was sent by registered mail to the Respondents' office. On July 9,
1953, the complaint issued. It named as respondents T. A. McGahey, Sr., and T. A.
McGahey, Jr., d/b/a Columbus Marble Works. A notice of hearing also naming
as respondents T. A. McGahey, Sr., and T. A. McGahey, Jr., d/b/a Columbus
Marble Works, was simultaneously issued. A copy of the complaint and notice of
hearing was sent by registered mail to the Respondents' office. On June 17, 1953,
Respondents McGahey, Sr., and McGahey, Jr, filed their answer alleging, among
other things, that Columbus Marble Works was a partnership composed of T. A.
McGahey, Sr., T. A. McGahey, Jr., Mrs. Altie McGahey Jones, and Mrs. Wilda
Frances McGahey Harrison. On January 4, 1954, the complaint was amended to
add the names of Jones and Harrison as respondents. A copy of the amended com-
plaint was served in the same manner as were copies of the documents described
above. When the hearing convened on January 11, 1954, Respondents McGahey,
Sr., and McGahey, Jr., were represented by counsel, but Respondents Jones and
Harrison were not. No witnesses were heard at this session, the hearing was con-
tinued until February 9, 1954. On January 15, 1954, Respondents Jones and Har-
rison were served with copies of the first amended charge, the complaint, the
amended complaint, and notice of hearing. Service was made by registered mail
addressed to their respective homes. When the hearing reconvened on February 9,
1954, appearances were entered on behalf of these two Respondents.
The Respondents urge that (1) the charge and the amended charge were not valid
because they named as the only respondent "Columbus Marble Works," which did
not exist as a separate legal entity; and (2) the charge and the amended charge were
not served upon an authorized agent of the Respondents so as to toll the running
of the 6 months' statute of limitations provided for in Section 10 (b) of the Act,3 at
least with respect to Respondents Jones and Harrison. As to the first ground, "Co-
lumbus Marble Works" was, as found above, the name under which the partnership's
operations were carried on. While it would perhaps have been more correct if the
Charging Party had set forth the names of the individual partners, failure to do so
is not fatal. No confusion with any other concern in Columbus, Mississippi, reason-
ably could have been expected to result, nor was any Respondent misled. Indeed,
the record is clear that Respondent T. A. McGahey, Sr., and the partners' general
manager, W. L. Jones, both had actual knowledge of the filing of the charges shortly
after the charges were filed. Under the circumstances, I find that the failure of the
charges to name the individual partners did not prejudice the rights of any Respond-
ent? As to the second ground, the record shows that the charge and the amended
charge were accepted and receipted for by Mrs. C. McGraw, a secretary in the Re-
spondents' office. With respect to her authority, Jones testified without contradic-
tion as follows:
Q. (By Mr. Threadgill.) Did she have a power of attorney to act on behalf
of the partnership?
A. No, sir.
Mr. THREAIGILL: That is all.
TRIAL EXAMINER: Now, just a minute. Is she an agent for the partnership
for the receipt of mail9 Is she authorized to receive mail addressed to the
partnership?
The WITNESS: She is.
In view of this testimony, I find that McGraw was authorized to receive mail on
behalf of the partnership, and that service of copies of the charge and the amended
3 Section 10 (b) provides, in part " . . . no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such charge is
made . . .
* Peterson Construction Company, Inc, 106 NLRB 850; United Mine Workers of America,
District 31, et at., 95 NLRB 546, 548; and N L R. B. v. East Texas Steel Castings Coin-
pany, Inc, 211 F 2d 813 (C A. 5). Compare N. L R. B. v. McCarron Company, et at,
206 F 2d 543 (C A 3) And see N L R. B v Cotten, 105 F. 2d 179, 183 (C. A 6), where
the court stated • "It is the employing industry that is sought to be regulated and brought
within the corrective and remedial provisions of the Act in the interest of industrial peace.
The term 'co-partners' may not then be regarded as more than a term of description, or
as denoting a legal entity which alone is subject to the order "
COLUMBUS MARBLE WORKS 1167
charge upon her constituted service upon each of the partners sufficient to satisfy
the requirements of Section 10 (b) of the Act and to toll the running of the 6 months'
statute of limitations .5 Accordingly, I find no merit in the Respondents ' motion to
dismiss the complaint and, insofar as ruling was reserved at the hearing, the motion
is hereby denied.
IV. THE UNFAIR LABOR PRACTICES
A. Sequence of events
In February 1952, the United Mine Workers attempted to organize the Respond-
ents' employees. A strike occurred and pickets were posted in front of the Respond-
ents' plant. The strike lasted 3 days; at its conclusion, all of the strikers were
reinstated.
On May 6, 1952, W. L. Hines, an organizer employed by the Union, met with
several employees of the Respondents, including employee Belton Hollinger, and
some of the employees signed union authorization cards at that time.
On September 22, 1952, employee Charlie Dean Ferguson was separated from
the Respondents' employ, under circumstances discussed hereafter. On October 2,
1952, the Union filed with the Board a petition seeking bargaining rights for the
Respondents' production and maintenance employees.6 On October 6, 1952, Hollin-
ger was separated from the Respondents' employ, as hereafter related. On October
27, 1952, the original charges herein were filed alleging, in part, that Ferguson and
Hollinger had been discriminatorily discharged. On December 4, 1952, the Board
issued its Decision and Direction of Election, finding that the Respondents' produc-
tion and maintenance employees (with certain inclusions and exclusions not now
material) constituted an appropriate bargaining unit, and directing an election among
the employees in that unit within 30 days, to determine whether or not they desired
to be represented by the Union? On December 18, 1952, employee Johnnie Bond
was separated from the Respondents' employ, as more fully described below. On
December 19, 1952, the Union filed amended charges, repeating the prior charges
against the Respondents and, in addition, alleging that Bond had been discrimina-
torily discharged. On January 13, 1953, Bond was recalled to work by the Respond-
ents. On April 21, 1953, at the request of the Union, the Union's representation
petition was withdrawn. On June 9, 1953, the complaint issued. On July 13, 1953,
;the Respondents reinstated Hollinger to his former position.
B. Interference, restraint, and coercion
1. Contentions of the parties
The amended complaint, as amplified by an oral bill of particulars, alleges that
The Respondents engaged in the following conduct:
(a) T. A. McGahey, Sr., in September and October 1952, in his office, interro-
gated employees concerning their union membership, activities, and desires.
(b) T. A. McGahey, Sr., and T. A. McGahey, Jr., on or about December 17,
1952, outside the union meeting hall, spied upon and kept under surveillance the
-union activities of the Respondents' employees.
(c) T. A. McGahey, Sr., on September 28 and October 2, 1952, in his office,
threatened employees with discharge, blacklisting, and other reprisals, and about
December 1, 1952, threatened employees with shutdown of the Respondents' plant
if the employees supported the Union.
(d) T. A. McGahey, Sr., about December 1, 1952, in his office, promised em-
ployees wage increases if they voted against the Union.
The complaint alleges that the above-described conduct constitutes interference,
-restraint, and coercion of the employees' rights, in violation of Section 8 (a) (1)
,of the Act. The answer denies that the Respondents engaged in the conduct alleged.
5De Luxe Motor Stages, 93 NLRB 1425 (footnote 2), enfd. 196 F. 2d 499 (C. A. 6) ;
The Ann Arbor Press, 85 NLRB 58, 60, enfd. 188 F. 2d 917 (C. A. 6), cert. denied 342
U S. 859 ; and Un4ted Mtine Workers of Amertica, District 81, at al., supra.
6 Columbus Marble Works, Case No. 15-RC-829 (not reported in printed volumes of
Board Decisions and Orders).
a On December 18, 1952, the Board amended the Direction of Election to provide that
-the election should be held within 60 days ; on March 18, 1953, the Board further amended
the Direction of Election by providing that the election should be held "at such time as
The Board shall in the future direct." No election was ever held.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Threats and interrogation
Eulie J. Porter, an employee of the Respondents and a witness for the General
Counsel, testified that, "in the summertime," he was summoned to the office and told
by McGahey 8 that "they" were trying to organize for a union, and that he was not
able to have a union and did not intend to go along with the Union "with the way
things were now." In addition, according to Porter, McGahey "talked a little about
the high freight rates." Porter further testified that this conversation took place
"about the same time the other employees were called into the office" but admitted
on cross-examination that he did not know whether or not all the employees were
called into the office on the same day. McGahey was too ill to testify.9 The Board
has held that it may consider as evidence statements attributed to deceased persons
or those too ill to testify However, the Board will subject such testimony to the
closest scrutiny before deciding what weight it should be given.10 Applying this
test to Porter's testimony, I consider it too vague and nebulous to form the basis
for any finding of violation of the Act.
Luther Hartley, an employee of the Respondents until February 1953, was a wit-
ness for the General Counsel. He testified that, in December 1952, a few days be-
fore the Board-conducted representation election was scheduled to take place and
on the same day that other employees were interviewed, he was called to McGahey's
office. McGahey told Hartley: "Well, now, this is not concerning the Union any
way at all. You are a man of your own. You can vote any way you want to but I
just want to call you boys in and talk with you and tell you my theory of it I am
not going under the Union, I will shut down before 1 will let the other man boss
my business. Folks don't have to have tombstones anyway I am not going to let
the other fellow run my business." Hartley interposed: "Well, I have never voted
for the Union neither time or had anything to do with it." McGahey then concluded.
"Me and Bill [Jones] have been talking of giving the whole shop a nickel raise.
Since this has come up-we didn't do it before this came up and since it has, we
will have to wait until it is settled before we can " Applying the Board's standards,
I find Hartley's testimony convincing and accordingly find that the conversation took
place substantially as related by him. I further find that McGahey's statement to
Hartley violated the Act, because it contained a threat that he would shut down the
plant before he would negotiate with the Union However, I find nothing coercive
in McGahey's statement that the contemplated wage increase could not be given until
after the election. Under the circumstances, the reasonable implication of this state-
ment was that the Respondents feared to put a wage raise into effect during the
pendency of a Board-conducted election, because of the risk that such an act might
be interpreted by the Board as an attempt improperly to influence the outcome of the
election.
Dudley Goodman , an employee of the Respondents and a witness for the General
Counsel, testified that, between the time when the United Mine Workers organized
the employees and the advent of the Union, he was summoned to McGahey's office.
McGahey asked him if he was for or against and he replied that he was against.
Goodman further testified that, at a time not specified, he overheard McGahey say to
some unidentified people. "If you win, you lose, and if you lose, you win." Applying
the Board's test with regard to conduct attributed to people too ill to testify, I base
no finding of violation of the Act upon Goodman's testimony.
V. W. Thornbrough, an employee of the Respondent's and a witness for the General
Counsel, testified that, at a time when other employees were being called to the office,
he was summoned to the office and McGahey inquired if he was in favor of the Union.
He replied that he was. McGahey then remarked that he wanted to find out who
was for the Union While Thornbrough's testimony was credible, no finding of
unfair labor practices will be based upon it, because the General Counsel has failed to
prove that the events described by Thornbrough occurred within 6 months before
8 T. A McGahey, Sr , will be referred to as McGahey
9It was stipulated that Dr S P Platt, if called as a witness , would testify that, since
September 8, 1953 , he had attended McGahey ; that his diagnosis on September 8, 1953,
was that McGahey had high blood pressure , sugar diabetes , and a leaking heart valve ; that
on Septembei 8. 1953 . McGahey had just suffered a stroke ; that his prognosis was "very
poor" ; and that he advised McGahey not to testify at the hearing because of the strain
which might result
to West Texas Utilities Company, Inc, 95 NLRB 1638 , 1639; and Wallick and Schwalm
Company, et at, 95 NLRB 1262 , enfd 198 F . 2d 477 (C. A. 3).
COLUMBUS MARBLE WORKS 1169
service of the charge . The evidence will, however , be considered in evaluating other
conduct by McGahey.li
Basil Malone , an employee of the Respondents and a witness for the General
Counsel , testified that he was called to McGahey 's office twice in October 1952, that
on both occasions he was asked about the Union, and that he told McGahey "Yes."
I consider this testimony vague and indefinite . Accordingly , no violation of the Act
will be based upon it.
Grady Shepherd , an employee of the Respondents , was another witness for the
General Counsel . He testified that he was summoned to McGahey 's office "about
the same time the rest of the employees were called in," that McGahey asked him if
he was for or against the Union and that he replied that he was against it, adding:
"I ought to be for the one that paid the most money ." I credit this testimony. But
in view of the General Counsel 's failure to prove that the incident related by Shepherd
took place within 6 months before service of the charge , I will base no finding of
violation of the Act upon Shepherd 's testimony.
R. C. Owens, an employee of the Respondents and a witness for the General Coun-
sel, testified that McGahey called him to the office and asked him if he was for or
against the Union , and that he replied that he was for it. He further testified that
he saw other employees going toward McGahey 's office on the same day . This testi-
mony is credible . But again , in view of the General Counsel's failure to prove that
the conduct about which Owens testified occurred within 6 months prior to service
of the charge , I shall base no unfair labor practice finding upon it.
Employee Johnnie Bond , a witness for the General Counsel, testified that he was
called to the office, and that McGahey asked him if he had signed a card "when
that other union was here." Bond replied that he had. McGahey next asked: "Did
you know that they were getting up another union " ? Bond answered - "I heard they
were." McGahey then stated : "Well, you boys are going to keep messing around
here talking about union and you will all be out of a job. You can 't get a job with
Mr Johnson or Mr . Wallace or nowhere in Columbus ." McGahey then made a mark
on a paper and dismissed Bond. Bond testified that this conversation took place
before Holhnger's separation [ October 6 , 1952], and about the time when the Board-
conducted representation election was scheduled to have been held [December 19,
1952]. On cross-examination, he placed the date of the conversation as prior to the
date on which the election was scheduled to have been held. In view of the vague-
ness of Bond 's testimony with regard to the time when this conversation took place,
and because of the self -contradictory nature of Bond's testimony in some other re-
spects, I will base no finding of violation of the Act upon this incident.
Belton Hollinger , an employee of the Respondents , was also a witness for the Gen-
eral Counsel . He testified that, on October 2, 1952, he was summoned to the office.
McGahey said to him: "John , there is going to be a union here. Are you for the
Union or against it?" Hollinger replied: "Mr. McGahey, that all depends."
McGahey then stated- "Well , you will have to say yes or no. That is what they all
say." Hollinger then answered • "Yes, a hundred percent." McGahey replied: "Well,
John , I guess you know that we are going to blackball all of [sic] that are for the
Union, with Johnson's, Benkey, the garment plant, the brickyard and all of those
other places ." Hollinger rejoined : "Mr. McGahey , I don't want to work for these
damn places nohow. There are other places here in town that pays about as good
wages as you pay and they also pay a vacation and they pay a little bonus about
every three months." McGahey said: "Yes, but I just can't. I just don't
see how I can ." Applying the test required by the Board to such testimony,
I find it credible . Accordingly , I conclude that McGahey on this occasion questioned
Hollinger with respect to his union sympathies and threatened to blacklist the Union's
supporters.
M. L. Martin , an employee of the Respondents , and likewise a witness for the Gen-
eral Counsel , testified that , sometime after the Union's campaign started, and on the
same occasion when other employees were called to the office , he was summoned to
the office. McGahey inquired how long he had worked for the Respondents and he
replied. McGahey next asked him whether he would vote for or against the Union
and he replied that he probably would vote in favor of it. McGahey then made
some remarks concerning coal miners who had organized a union. Applying the
apppropriate test to this testimony , I find it credible. Accordingly , I conclude that,
sometime after May 6, 1952, McGahey questioned Martin concerning how he would
vote in any Board-conducted election.
'IN L. R 13 v Lvzerne Hide and TaZZow Company , 188 F. 2d 439 (C A 3), Bert de-
nied 342 U S 868
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Surveillance
One evening in mid-December 1952 , the Union held a meeting at Carpenters' hall
for employees of the Respondents . Cecil Rector , a former employee of the Respond-
ents, testified that, at about the time when the meeting was scheduled to begin, he
saw McGahey drive to a spot across the street from the union hall and park his car.
According to Rector , McGahey was parked 50 to 60 feet from the entrance to Car-
penters' hall, and in such a position that he had a clear view of those entering and
leaving the hall . Rector took down the license tag number of the car , and the record
shows that title to the car with corresponding license tag number was registered in
the name of "Columbus Marble Works." Rector further testified that, as he passed
McGahey's car, McGahey raised his hand and Rector said "Good evening" to him.
,Several other witnesses for the General Counsel testified that McGahey was sitting
in an automobile parked across the street from the union hall on the evening that the
meeting in question was held. These witnesses included Ferguson , Bond , Hines, and
Ira Freeman , president of the local Central Labor Union.
The identification of McGahey as the person who was sitting in the parked car is
overwhelming and cannot be seriously questioned . The Respondents , however,
point out that Carpenters ' hall is located in a neighborhood shopping center only
a few blocks from McGahey's residence . From this, the Respondents argue that
there is insufficient proof that McGahey's purpose in parking his car in the vicinity
of the union hall was for an improper purpose. However, as the incident took place
at an hour when most of the stores in the shopping center would normally be closed,
and in view of other illegal conduct engaged in by McGahey , described above, I
conclude that McGahey deliberately parked his car near the union hall for the pur-
pose of observing who went in and out of the meeting. Such surveillance of con-
-certed activities of employees is violative of the Act.
4. Conclusions with respect to interference , restraint , and coercion
I conclude that the Respondents , through McGahey, interfered with , restrained,
and coerced their employees . This finding is based solely upon the following
conduct:
(a) McGahey 's interrogation of employee Hollinger on October 2, 1952, concern-
ing his union sympathies and activities.12
(b) McGahey 's questioning of employee Martin sometime after May 6, 1952,
regarding whether Martin would vote for or against the Union in the event of an
election.
(c) McGahey 's threat to employee Hartley in December 1952 that he would shut
down the plant before he would negotiate with the Union.
(d) McGahey 's threat to employee Hollinger on October 2, 1952, that supporters
of the Union would be blacklisted.
(e) M,cGahey 's surveillance of the union meeting in mid -December 1952.13
The record is barren of any evidence that T. A. McGahey , Jr., engaged in conduct
violative of Section 8 (a) (1) of the Act . Furthermore , I find no evidence that the
Respondents on December 1, 1952, promised wage increases to employees if they
would vote against the Union.
In view of the violations of Section 8 (a) (1) of the Act described above,
McGahey's interrogation of Thornbrough , Owens, and Shepherd , and Cox's threat
to Ferguson , described hereafter , I conclude that the Respondents have an antago-
nistic attitude toward the Union , and that they embarked upon an antiunion campaign
in the fall of 1952. The fact that , in February 1952, all employees who struck at
the behest of the United Mine Workers were reinstated upon request does not detract
from the validity of this conclusion.
C. The separation of Charlie Dean Ferguson
1. Facts
Charlie Dean Ferguson was employed by the Respondents in January 1943 as a
shipping clerk . At that time , he was the only shipping clerk in the Respondents'
'a In the context of other unfair labor practices found to have been committed by the
Respondents , the Board has held interrogation violative of the Act . Sears, Roebuck &
Co , 109 NLRB 632, footnote 2.
13 Nothing in either Hilltop Baking Company, 93 NLRB 694 , or N. L R B v. National
Motor Bearing Company , 105 F 2d 652 ( C A. 9), both cited by the Respondents , requires
a different result.
COLUMBUS MARBLE WORKS 1171
employ. He remained in that job during his entire employment with the Respondents.
In addition, he drove a truck on "one or two trips."
Ferguson participated in the United Mine Workers' picket line in February 1952,
and returned to work at the end of that strike. At a time not disclosed in the record,
he appears to have taken part in the Union's efforts to organize the Respondents'
employees. He did not attend the union meeting held in mid-December 1952, but
drove past the union hall during the evening and took another employee home from
there.
Ferguson was separated from the Respondents' employ on September 22, 1952,14
and has never been recalled to work. As the witnesses differ with respect to the
circumstances surrounding his separation, the testimony of each of them will be
set forth separately.
Ferguson, a witness for the General Counsel, testified that, on October 1, 1952,
he was approached by John Henry Cox, superintendent of the Respondents' plant
for more than 40 years. According to Ferguson, Cox said to him: "Charlie Dean,
you had better quit talking so much for the Union. If you don't you will lose your
job. I like you and you are a good worker and I would hate to see you go." 15
Ferguson further testified that, at the close of the.business day on September 26,
1952, he was met at the clock by C. F. Shelton, who said to him: "Charlie Dean, I
have orders to lay you off. T. F. Whitten is taking your job." Ferguson accordingly
went home. The next morning, he returned to the plant and asked the payroll clerk,
Mrs. McReynolds, for his pay, but she refused to give it to him. Ferguson then
sought Cox, who returned with him to the office. Mrs. McReynolds then asked:
"Why does he want his time?" Cox replied: "He is done here for good. Pay him
off in full." After Ferguson received his pay, Cox said to him: "Well, Charlie Dean,
I hate to see you go. You have been one of the best men I have ever had here
and you have also done your work right and done it well. Mr. McGahey tried to
get me to lay you off, but I told him that I would quit and go home before I
would do it, that he could do it himself. I warned you to quit talking about the
Union and you wouldn't listen to me." Ferguson then left the plant.
Cox, a witness for the Respondents, denied that he had warned Ferguson to cease
talking in favor of the Union. He testified that he was not aware of any need to
get rid of Ferguson's services, that he took no part in the decision to let Ferguson go,
and that he had no idea why Ferguson was separated. Indeed, Cox asserted that
he did not know whether Ferguson had been laid off or had voluntarily quit. He
testified: "I was looking for him back any day. He never did show up so I had
to get somebody else to look after the work." Accordingly, Cox "got [T. F. Whitten,
a nephew of one of the Respondents] to pinch hit . . . until the company could do
better." Cox further testified that Whitten acted as shipping clerk "just a few
months" and that after Whitten left the job "another man came in in kind of bad
shape and we let him pinch hit. That is, take his place and do the job that he was
doing ." On further questioning about his assignment of Whitten to the job of ship-
ping clerk to replace Ferguson, Cox testified: "I just put him [Whitten] on this
job to keep him busy because he was on the payroll." In addition, Cox testified
that, even after he was visited by a representative of the Board with regard to the
instant charge, he never inquired of anyone connected with management why Fer-
guson was no longer employed.
C. F. Shelton, a witness for the Respondents, testified that, for a period before
Ferguson was laid off, both Ferguson and Whitten were shipping clerks. He further
testified that McGahey instructed him to inform Ferguson that he was laid off. Ac-
cordingly, Shelton told Ferguson: "I have been told to tell you that you were laid
off." Ferguson replied: "Is that so?" and Shelton responded: "Yes, that is so."
Shelton further testified that, a day or two later, he told W. L. Jones, the Respondents'
general manager: "Mr. Mac laid Ferguson off yesterday evening." Jones replied that
there had not been enough work for both Ferguson and Whitten in the shipping
room, one of them had to go, and that Whitten had been shipping clerk before Fer-
guson. Shelton also testified that Whitten left the Respondents' employ a year or
more after Ferguson's separation.
14 While Ferguson testified he was separated on September 26, the Respondents' records
show his separation was on September 22.
15 Ferguson also testified that, sometime in August, he was warned by C. F. Shelton
that if he did not stop fooling with the Union he would lose his job. Shelton denied mak-
ing any threat to Ferguson The General Counsel contends that Shelton is a supervisor
within the meaning of the Act ; the Respondents dispute this. I deem it unnecessary to
resolve this conflict
344056-55-vol. 111-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones, a witness for the Respondents, testified that Whitten, a relative, had been
shipping clerk before Ferguson was originally hired in 1943, but had gone into the
Armed Forces. When Whitten returned from the Armed Forces in 1947, he went
on the road as a salesman for the Respondents. However, he was unable to produce
enough business to justify his salary of $250 a month plus traveling expenses. As
an economy measure, Whitten was called in from the road and left the Respondents'
employ for 1 or 2 weeks. Those parts of his territory which were "worth trying to
hold" were assigned to two other salesmen, enlarging their territories. As Whitten
was related to some of the Respondents and they "had to take care of him on the
job," he was soon reemployed by the Respondents as shipping clerk at a salary of $200
per month. This occurred a few weeks before Ferguson's separation. At the time,
Whitten was told that if he could develop sufficiently, he might eventually be made
superintendent of the plant. For several weeks after that, both Whitten and Ferguson
worked as shipping clerks. Although there was a probability that Whitten would
take over Ferguson's job ultimately, Ferguson was not informed of this. Jones fur-
ther testified that "we hoped" that Whitten would find other employment for him-
self. When he did not do so, Jones and McGahey jointly decided that Ferguson
would have to be separated. According to Jones, the Respondents' intent at the time
was merely to lay off rather than to discharge Ferguson. The primary reason for
separating Ferguson from the Respondents' employ was to give Whitten a job.
Whitten voluntarily left the Respondents' employ about a year later. At that time,
the Respondents made no attempt to contact Ferguson, because, according to Jones,
Ferguson had moved from Columbus and it was Jones' understanding, even though
he knew that charges had been filed alleging that Ferguson had been discriminatorily
discharged, that Ferguson had obtained a better job where he was and would not want
to resume his former employment. On cross-examination, Jones admitted that, at
the time Whitten quit, there was no shipping clerk on the payroll and no man in
training for the job. Immediately after so testifying, Jones testified that the Respond-
ents did, at that time, have a man who was sufficiently proficient to step into Whitten's
job. Jones denied that, at the time of Ferguson's separation, he knew of the Union's
attempt to organize the Respondents' employees, or that he had any knowledge of
Ferguson's activities in support of the Union.
Neither Whitten nor Mrs. McReynolds was called as a witness.
The versions of the various witnesses differ sharply in several respects. For ex-
ample, Cox testified that he did not even know that Ferguson had left, a version in-
consistent with Ferguson's testimony that Cox accompanied Ferguson when the
latter was paid in full. In this connection, I deem it significant that the Respondents
failed to call Mrs. McReynolds to the stand to dispute Ferguson's story. Moreover,
I find incredible, and do not credit, Cox's testimony that he did not know whether
Ferguson had been laid off or had voluntarily quit, his testimony that, up to the time
of the hearing, he had not sought information from any of his superiors to explain
Ferguson's absence from the plant,is and his testimony that he "was looking for him
[Ferguson] back any day." I conclude that the two conversations between Cox and
Ferguson described above occurred substantially as related by Ferguson. However,
I do not credit Ferguson's testimony with regard to the time when the first of these
conversations with Cox took place. Although Ferguson testified that this conversa-
tion occurred in the Respondents' plant about October 1, he had left the Respond-
ents' employ before then, and was undoubtedly confused as to dates.17 Therefore I
19 The hearing took place more than 15 months after Ferguson's separation.
17 That Ferguson's first conversation with Cox must have occurred before September 22
is illustrated by his testimony immediately following :
Q (By Mr Hutcheson.) Do you recall having a conversation with Mr. Cox in
which the subject of the Union was broached
A Yes, sir, I did.
Q Will you tell me first the date?
A. Around October 1st.
w r + • s « a
Q On any occasion after that did you talk to Mr. Cox again about the union?
A Not until the morning after I was laid off [September 23].
Q. After that occasion in August of 1952, did you talk to Charlie Shelton?
A Yes, sir, I did
Q About the Union?
A. Yes, sir.
Q. Will you state as best you remember when that was?
A. Sometime in August. I couldn't tell you just what part of August.
COLUMBUS MARBLE WORKS 1173
find that the conversation between Ferguson and Cox in which Cox warned Ferguson
of the consequences of his union activities occurred on or before September 22.
The Respondents' witnesses were not consistent among themselves with respect to
the time when Whitten returned to his former job as shipping clerk. Both Shelton
and Jones testified that Whitten was in the shipping room for a period of time
before Ferguson's separation, resulting in 2 employees in the same job where only 1
was needed. On the other hand Cox (who was described by Jones as Ferguson's
immediate superior) testified that he assigned Whitten to the shipping room only
after Ferguson failed to "show up," and merely "to pinch hit," because he had to
get somebody else to look after the work." Whitten did not testify. Despite this
discrepancy among their own witnesses, the Respondents failed to introduce Whitten's
payroll records to show his work assignments. As between the version of Cox on
the one hand and that of Shelton and Jones on the other, I credit that of Cox, which
was in the nature of an admission against interest, and find that Whitten did not
return to the shipping room until after Ferguson left.
2. Contentions and conclusions with regard to Ferguson's separation
The complaint alleges and the General Counsel contends that Ferguson was dis-
charged rather than laid off, and that the reason for his discharge was his known
union activities. The Respondents allege in their answer that Ferguson's employ-
ment with the Respondents "was terminated . for good, valid and sufficient
causes and reasons, wholly disconnected from and having absolutely nothing to do,
with said employee's . alleged membership in or activities on behalf of said:
Union." The Respondents further maintain that they neither knew of nor suspected
that Ferguson was actively supporting the Union. In their brief, the Respondents
take the position that Ferguson was laid off rather than discharged, and that his
layoff was due solely to the necessity of making room for Whitten, a relative. At
the hearing, the Respondents introduced evidence indicating that Ferguson had a
tendency to spend an excessive amount of working time fraternizing with the female
employees. Indeed, the Respondents seem to have called one of their witnesses,
John Island, exclusively for the purpose of establishing this misconduct on Fergu-
son's part. However, the Respondents' brief makes it clear that "the contention is
not made in connection with any of the complainants that they were laid off because
their work was unsatisfactory to the employer" and further states: "Respondents
never contended, and do not now contend, that Ferguson's `Valentino' tendencies had
anything to do with his layoff." Accordingly, I do not consider that there is any
issue regarding misconduct on the part of Ferguson.
I turn first to the determination of whether Ferguson 's union activities were known
to the Respondents at the time of his separation on September 22, 1952. It will be
recalled that Ferguson testified that, while he was still working for the Respondents,
Cox had warned him to cease his union activities. In view of this testimony, which
is credited, I am convinced and find that, at the time of Ferguson's separation from
the Respondents' employ on September 22, the Respondents knew or suspected that
he was a supporter of the Union.
I next examine the question of whether Ferguson was discharged, as the General
Counsel maintains , or merely laid off, as contended by the Respondents. In this
connection, I am impressed by the sworn answer of the Respondents to the effect
that Ferguson was "terminated"-a term which, despite the contrary arguments of
the Respondents' able counsel, I interpret as being indicative of discharge and incon-
sistent with layoff. In addition, it has been found that Cox, in Ferguson's presence,
told Mrs. McReynolds: "He [Ferguson] is done here for good. Pay him off in full."
There is also Cox's statement to Ferguson: "I hate to see you go." Finally, there is
the failure of the Respondents to recall Ferguson to work after Whitten quit and
the position of shipping clerk again became vacant. Jones' explanation for the
Respondents' failure to recall Ferguson at that time, especially considering Ferguson's
9 years of experience in the job, is not credited. In connection with the Respondents'
general policy regarding the recall of laid-off employees, Jones testified: "Our policy
is to call them back if we have need for them and consider them to be worth more
to us than some other employee who has not been laid off and who might do the
same job." In view of the Respondents' sworn answer, the statements of Cox to
Mrs. McReynolds and to Ferguson at the time Ferguson was paid off, and the Re-
spondents' failure to explain adequately their failure to recall Ferguson when his
former job became vacant, although some other laid-off employees were being recalled
from time to time, I conclude, in agreement with the General Counsel, that Ferguson
was discharged and not merely laid off.
Let us now explore the Respondents' contention that Ferguson's separation was
motivated by a desire to find work for Whitten. Certainly, absent prohibitory con-
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractual obligations, an employer has the right to favor his relatives in the matter of
employment. However, Cox's testimony makes it clear that Ferguson was not sepa-
rated in order to make room for Whitten. Indeed, Cox's testimony points to the
contrary state of affairs, namely, that the vacancy caused by Ferguson's separation
left Cox with a position which it was necessary to fill and that he merely called upon
Whitten to "pinch-hit" in this capacity. The picture becomes even more clear when
we consider Jones' flimsy excuse for failing to recall Ferguson after Whitten quit.18
In view of these facts, I conclude that the Respondents' desire to take care of Whitten
was not true reason for Ferguson's discharge, but was a mere pretext seized upon
to justify the discharge.
What then was the real motivating reason for Ferguson's discharge? The answer
is found in the Respondents' animosity toward the Union and the clear warning
voiced by Cox to Ferguson regarding the latter's real or fancied union activities.
In view of the Respondents' union animus, the warning given by Cox to Ferguson
prior to his discharge, the fact that Ferguson was discharged rather than merely laid
off, Cox's remarks to Ferguson when Ferguson was paid, the failure of the Respond-
ents to recall Ferguson when the job of shipping clerk again became vacant, the shift-
ing position of the Respondents regarding whether Ferguson was discharged or merely
laid off, and the shifting position of the Respondents with respect to whether or not
Ferguson's fraternization with the female employees motivated the discharge, I con-
clude that the Respondents discharged Ferguson on September 22, 1952, and there-
after failed and refused to reinstate him, because of his known or suspected activities
on behalf of the Union. I further find that the desire of the Respondents to look
after Whitten was not the real reason for Ferguson's discharge, but was merely a
pretext. Accordingly, I conclude that Ferguson's discharge was discriminatory and
violative of Section 8 (a) (1) and (3) of the Act.
D. The separation of Belton Hollinger
1. Facts
Belton Hollinger was first employed by the Respondents in 1941 as a common
laborer. During his first 3 months with the Respondents, he was assigned to making
boxes, then put on granite cutting for a few days, after which he was taught to op-
erate a gang saw. Finally, he was assigned to operating an overhead crane, which
has continued to be his assignment up to the present time. Whenever a worker
needed to have a stone moved, he would call for the crane. Then Hollinger, as
crane operator, would move the stone with the crane to the location indicated by the
workman in question.
Hollinger participated in the picketing during the United Mine Workers' strike in
February 1952, and was reinstated at the end of that strike. As previously de-
scribed, Hines, an organizer for the Union, met with several employees of the Re-
spondents on May 6, 1952, including Hollinger. As also more fully detailed above,
Hollinger was interrogated by McGahey on October 2, 1952, regarding his union
sympathies. During this interview, Hollinger informed McGahey that he was "a
hundred percent" for the Union.
At the lunch hour on October 6, 1952, O. W. McDaniels,19 on instructions from
McGahey, informed Hollinger that McGahey had directed that Hollinger be laid
off. Hollinger then punched out and sought McGahey. He said to McGahey: "Mr.
Mac, Mr. McDaniels said that you said to lay me off at dinner time, to let me go."
McGahey replied: "Lay you off, hell. You are fired, by God." Hollinger then
18 The Respondents' brief points out that there was no showing of any application for
reemployment on the part of Ferguson But Ferguson could hardly have been charged
with knowledge that Whitten had left the plant and that his former job as shipping clerk
was once again vacant. Nor do I find merit in the Respondents' contention that, as Fergu-
son had moved out of town, it would have been burdensome for the Respondents to seek
hum out to offer him reinstatement As charges were then pending before the Board which
had been filed by the Union, an offer to reemploy Ferguson could easily have been trans-
mitted to Ferguson either through the Board's agents or through representatives of the
Union
19 The General Counsel contends that McDaniels is a supervisor within the meaning of
the Act, while the Respondents maintain that he is not. As there is no doubt that Mc-
Daniels was authorized to deliver to Hollinger the message described above, I deem it
unnecessary to determine whether or not he is a supervisor within the meaning of the
Act
COLUMBUS MARBLE WORKS 1175
answered: "Thank you, sir. Mr. Mac, what is the trouble, my work not satisfac-
tory?" To this question McGahey replied: "Yes, but hell, what are you doing
now?" Hollinger rejoined: "Well, what is it I am doing now?" McGahey then re-
marked: "Oh, hell, you will never work for the Columbus Marble people any
more." 20 Hollinger was then paid off and left the plant.
On July 13, 1953, McGahey reinstated Hollinger to his former position as crane
operator, at wages which were 10 cents per hour more than those Hollinger had re-
ceived before his separation. Hollinger is still employed by the Respondents in that
capacity.
In explanation of Hollinger's separation, the Respondents produced three wit-
nesses.21 Eulie J. Porter testified that in the fall of 1951 he began operating one of
the Respondents' cranes. At that time there were 5 cranes at the Respondents' plant,
of which only 3 were in constant use. Porter and Hollinger were 2 of the 3 full-
time crane operators employed in the fall of 1951. After about 6 months of oper-
ating a crane, Porter was transferred to "general repair work," which he described
as "making gates or anything we could find to do." When Hollinger was separated
from the Respondents' employ, Porter resumed operating a crane as his main job,
but continued doing odd jobs such as welding saw blades as a minor part of his
work. He was transferred from operating a crane to running a newly acquired
wire saw "a short time" before Hollinger's recall and is still on this job. During the
period between Porter's transfer to the wire saw and Hollinger's recall, the crane
in question was operated by employee Lee Barroy, who also worked on the gang saw
part time.
McDaniels testified that it was a complete surprise to him when Hollinger was
let go. He corroborated Porter's testimony that Porter operated a crane after
Hollinger's separation and further testified that no new employee was hired to take
Hollinger's place. He also testified that, within 2 weeks before Hollinger's recall,
he (McDaniels) requested McGahey to get Hollinger back and McGahey replied
that he would do so "just as quick as the work picked up."
Jones testified that over a period of many years the Respondents have annually
obtained contracts with the Federal Government for granite headstones. Accord-
ing to Jones, the Respondents had a favorable Government contract for the fiscal year
1952, which ran from July 1951 to the end of June 1952. However, the Govern-
ment contract for the fiscal year 1953 (July 1952 to the end of June 1953) did
not come up to expectations. Jones also testified that, in 1952, the Respondents
employed Hollinger and one other full-time crane operator. Hollinger handled only
granite, but this included granite for both Government and civilian orders. Between
the end of the fiscal year 1952 (July 1, 1952) and Hollinger's layoff (October 6,
1952), although work on the Government contract was slack, Hollinger was still
occupied with work on the crane, because the Respondents had purchased a con-
siderable quantity of granite slabs with the expectation of using them for future
Government contracts. Jones further testified that Porter was a versatile worker,
able to perform many different jobs around the plant, while Hollinger was only
capable of operating the crane and doing common labor. Accordingly, as there was
not sufficient work to justify a full-time crane operator, it was decided as an econ-
omy measure to lay Hollinger off, to combine his job with welding, and to assign
the combined job to Porter. Jones also testified that this decision was made solely
by McGahey, that it was apparently McGahey's intent merely to lay off Hollinger
temporarily rather than to discharge him, and that at the time of the layoff McGahey
had said: "Maybe we can take him back if we get another Government contract."
Jones further testified that the Government contract for fiscal 1954, which began
on June 1, 1953, was an improvement and that McGahey accordingly decided to
recall Hollinger. Jones denied that, at the time of Hollinger's separation, he knew
or suspected that Hollinger was actively supporting the Union.
The Respondents' records show that 31 employees, mostly stencil cutters and sand
blast operators, were laid off in June 1952, of whom all but 9 were eventually re-
called to work. A substantial number of employees was also laid off the following
20 The findings of fact regarding this conversation are based upon Hollinger's testimony.
As McGahey was too ill to testify, Hollinger's testimony has been subjected to close
scrutiny and found credible.
21 On cross-examination, when asked about the reason for Hollinger's discharge, Cox,
the Respondents' superintendent, replied : `I don't know any more about that than a
jackrabbit."
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
month, but the number seems to have trickled off after that 22 The Respondents'
records also indicate that the Government contract for fiscal 1953 resulted in consid-
erably less orders than had its counterpart for fiscal 1952.23 However, the record
contains no figures for orders or production on monuments for civilian use.
2. Contentions and conclusions with regard to Hollinger's separation
The General Counsel contends that Hollinger's separation was a discharge, rather
than a layoff, and that it was motivated by Hollinger's known or suspected support
of the Union. The Respondents' answer alleges that Hollinger's employment with
the Respondent "was terminated on or about October 6, 1952, . for good, valid
and sufficient causes and reasons, wholly disconnected from and having absolutely
nothing to do with" union activities. Indeed, the Respondents contend that, at the
time of Hollinger's separation they neither knew nor suspected that he was active
on behalf of the Union. At the hearing, they introduced evidence indicating that
Hollinger was an inefficient employee, because of excess absenteeism, and because
he once fell asleep at his post. However, in their brief, the Respondents abandoned
any defense based upon Hollinger's work performance and stated categorically:
"The contention is not made in connection with any of the complainants that they
were laid off because their work was unsatisfactory to the employer." Accordingly,
Hollinger's work performance is not in issue.
Despite Jones' testimony to the contrary, I am convinced and find that, at the time
of Hollinger's separation, the Respondents knew of his sympathy toward the Union.
I base this finding upon Hollinger's interview with McGahey a few days previously,
during which Hollinger told McGahey that he was "a hundred percent" in favor
of the Union.
Was Hollinger discharged or merely laid off? In my opinion, the answer to this
question lies in the conversation between Hollinger and McGahey shortly after
Hollinger checked out at noon on October 6, 1952. During that conversation,
McGahey told Hollinger that he was "fired" and would "never work for the Colum-
bus Marble people any more." In addition, the Respondents' answer states that
Hollinger was "terminated." It is true that Jones testified that, at the time of
Hollinger's separation, McGahey stated to Jones: "Maybe we can take him
[Hollinger] back if we get another Government contract," but that self-serving
testimony is, in my opinion, entitled to little weight. It is also true that the Re-
spondents reinstated Hollinger in July 1953. However, when it is realized that this
reinstatement occurred after the issuance of the complaint herein, it is not convincing
evidence that, at the time of his separation, McGahey intended to recall Hollinger.
Accordingly, I find that Hollinger was discharged on October 6, 1952, rather than
laid off, and that at that time McGahey had no intention of ever recalling him.
I turn now to an examination of the motive for Hollinger's discharge. It is true,
as Jones pointed out, that the Government contract for fiscal 1953 resulted in con-
siderably fewer orders than had the contract for the previous fiscal year. It is also
true that other employees were laid off at the end of fiscal 1952. However, the
intemperate language used by McGahey on the occasion of Hollinger's discharge and
his question: "Hell, what are you doing now?" indicate that the real reason for
the discharge was McGahey's union animus and his knowledge or suspicion that
Hollinger was a union supporter. No other explanation adequately accounts for
McGahey's angry outburst. This conclusion is bolstered by the fact that Hollinger's
discharge was timed only a few days after the Union filed its representation petition
and only a few days after McGahey illegally interrogated Hollinger, and that it
followed closely the discriminatory discharge of Ferguson. It is also significant that
the Respondents shifted their position with regard to whether Hollinger was dis-
charged or merely laid off. I further note that, at the hearing, the Respondents intro-
duced evidence that Hollinger was an unsatisfactory employee, but in their brief
abandoned any defense based on his work performance. Such muddying of the
waters serves only to lend strength to the conclusion that the discharge was illegally
motivated. I accordingly find that the Respondents discharged Hollinger on October
6, 1952, and thereafter failed and refused to reinstate him until July 13, 1953, because
of his known or suspected support of the Union. It follows that his discharge was
violative of Section 8 (a) (1) and (3) of the Act.
a2 See Appendix A.
23 See Appendix B.
COLUMBUS MARBLE WORKS'
E. The separation of Johnnie Bond
1177
1. Facts
Johnnie Bond was employed by the Respondents in October 1948 to operate a
shot machine, also referred to as a polishing or steeling machine. He has continued
at this job ever since. Bond was the only one of the Respondents' employees who
attended the union meeting held in mid-December 1952, the exact date of which will
be discussed hereafter. As previously described, McGahey subjected this meeting
to surveillance.
On or about December 9, 1952, the motor in the shot machine operated by Bond
caught fire, causing the machine to fail.24 The motor was taken out of the machine
and sent away for repair. While repairs to the motor were under way, the remainder
of the machine was overhauled 25
The four other similar machines in the same department were all in operation.
There being no machine for Bond to operate at the time, he did odd jobs, such as
cleaning up, loading the tramcar, and helping another employee to "break out."
This continued until December 18, 1952. On that date, Jones directed Bond to
punch out for a few days until the repairs to his machine had been completed.
Jones said he would call Bond back when the machine was ready to operate.26
Jones testified that he alone made the decision to lay off Bond, that it was intended
as a layoff and not as a discharge, and that, since the machine was not in working
condition, there was no work for Bond and the Respondents would not need him
again until the machine could be repaired.
During the Christmas holidays of 1952, the Respondents distributed a Christmas
bonus to their employees, and Bond received his although he was in a laid-off status
at that time. During Bond's layoff, no other employee was hired to do the work
that he had performed. By January 13, 1953, Bond's machine had been completely
repaired and he was recalled to work. He has been working as a shot machine
operator for the Respondents ever since.
2. Contentions and conclusions with regard to Bond's separation
The complaint alleges that Bond was discharged on about December 19, 1952,
and refused reinstatement until about January 14, 1953, because of his activities on
behalf of the Union. Specifically, the General Counsel contends that Bond was the
only one of the Respondents' employees who attended the mid-December meeting
of the Union, that McGahey saw Bond on that occasion, and that Bond's attendance
was responsible for his separation the next day, which the General Counsel urges
was a discharge rather than a mere layoff. The answer alleges that Bond's employ-
ment was "terminated on or about December 19, 1952, . for good, valid and
sufficient causes." In their brief, the Respondents contend that Bond was separated
on December 18, 1952, rather than on December 19, 1952, that his separation was
not a termination but merely a layoff, that it was motivated solely by mechanical
difficulties of his machine, that they did not know of his union adherence at the
time , and that the union meeting in question did not take place before Bond's layoff.
Despite the date of December 19 in the pleadings, all parties agree that Bond's
separation occurred on December 18, 1952,27 which was a Thursday, and I so find.
24 Although Bond testified that the motor burned out only about 2 days before his sepa-
ration on December 18, and although Jones likewise testified that Bond's machine failed
only a day or two before Bond's separation on December 18, the invoice of the firm to
which the motor was sent for repair shows that the motor was shipped from the Respond-
ents' plant on December 9, 1952. The motor must therefore have failed on or before that
date.
2s Thus, on December 11, 1952, the Respondents ordered some spare parts, partly for
Bond's machine, from a firm in Rutland, Vermont. Jones' testimony that these spare
parts were ordered before Bond's machine broke down is rejected as inaccurate and incon-
sistent with the date on the invoice for the repair of the motor.
2e The findings of fact with regard to this conversation are based upon the mutually
corroborative testimony of Jones and Bond.
24 See page 4 of the General Counsel's brief and page 41 of the Respondents ' brief. See
also Respondents' Exhibit No. 5.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first question which arises is whether, on that date, the Respondents knew of or
suspected Bond's interest in the Union, indeed, whether Bond had then shown any
interest in the Union. This, in turn, depends upon the exact date on which the
Union's mid-December meeting was held. Bond, a witness for the General Counsel,
testified that "to the best of my knowledge" the meeting took place on the night of
December 17, 1952, although he could not recall the day of the week. He further
testified that he was laid off the following morning. Cecil Rector, a former employee
of the Respondents and a witness for the General Counsel, testified that he attended
the union meeting and that it occurred "somewhere around the 15th, 16th or 17th
of December" in 1953, but later changed that to 1952. Hines, a witness for the Gen-
eral Counsel, who apparently conducted the meeting, set the date as December 17,
1952. Ferguson, a witness for the General Counsel, as has been previously related,
did not attend the meeting, but took Bond home. Ferguson set the date as December
17, 1952. He also testified that he believed that it took place on a Friday. The
General Counsel also called as a witness Ira Freeman, president of the Central Labor
Union in Columbus, which organization operated the Carpenters' hall where the
meeting in question took place. He testified that Hines called a meeting of the Re-
spondents' employees "around the middle of December." He further testified that
he was at the hall that night to attend a "regular meeting of the C. L. U." and that
the C. L. U. had meetings only on Thursday nights. Thus the General Counsel's
witnesses did not agree among themselves. I find Freeman's testimony on this point
credible. Based upon his testimony, I conclude that the Union's meeting for the
Respondents' employees called by Hines and attended by Bond took place on Decem-
ber 18, 1952, the evening of the day on which Bond had been laid off. In short,
Bond was laid off before he engaged in any activities on behalf of the Union and
before McGahey saw him attending the union meeting. It follows that his separa-
tion was not motivated by his known or suspected union activities. I so find.
However, that does not entirely dispose of the allegations of the complaint. The
complaint alleges not only that Bond was discriminatorily separated from the Re-
spondents' employ on December 19, 1952, but also that he was discriminatorily
denied reinstatement from that date until January 14, 1953. It is clear, and I find,
that McGahey discovered on the night of December 18, 1952, after Bond had been
laid off, that Bond was interested in the Union. Did this knowledge cause the Re-
spondents to delay reinstating Bond to his former position? On this subject, Mc-
Daniels testified: "The day we got [Bond's machine] rebuilt and fixed up we called
him back." Bond himself testified that when he returned to work the same stone
was in his machine that had been there when the machine broke down. The spare
parts ordered on December 11, some of which were for Bond's machine, were
shipped from Rutland, Vermont, partly by freight on December 24, 1952, and partly
by parcel post on January 6, 1953. The date on which they arrived at the Respond-
ents' plant in Columbus, Mississippi, is not shown. The invoice for the motor's
repair is dated January 15, 1953, but it does not disclose the date on which the
repairs to the motor were completed. Under the circumstances, I conclude that
the General Counsel has failed to prove by a preponderance of credible evidence that
the Respondents discriminatorily refused to reinstate Bond prior to January 13,
1953, because of his known union activities.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Charlie
Dean Ferguson and Belton Hollinger, thereby discouraging membership in the above-
named labor organization, the Respondents have engaged in and are engaging in un-
fair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such conduct, and by other acts interfering with, restraining, and coercing
their employees in the exercise of rights guaranteed in Section 7 of the Act, the
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The above-described unfair labor practices tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce and constitute
unfair labor practices affecting commerce within the meaning of Section 2 (6)
and (7) of the Act.
COLUMBUS MARBLE WORKS
Appendix A
EMPLOYEES LAID OFF, DISCHARGED, AND RECALLED
June 1952 through January 1953
Month
June 1952-----------------------------------------------
July 1952-----------------------------------------------
August 1952--------------------------------------------
September 1952----------------------------------------
October 1952 -------------------------------------------
November 1952----------------------------------------
December 1952----------------------------------------
January 1953-----------------------------------------
Total--------------------------------------------
Laid off
31
23
3
4
10
2
2
6
81
Dis-
charged
1
1
Recalled
40
Appendix B
ORDERS FOR GRANITE MARKERS RECEIVED UNDER GOVERNMENT CONTRACTS
Fiscal 1952
Up to first week in October----------------------------
At end of fiscal year------------------------------------
Number of
orders
received
8,457
30,251
Number of
employees
engaged on
contract
65
Fiscal 1953
Number of
orders
received
-42
Number of
employees
engaged on
contract
1, 660
4, 751
1179
Net Gain
or Loss
20
------------
5. The Respondents have not discriminated with regard to the hire and tenure of
employment of Johnnie Bond.
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, I make the following:
Recommendations
It has been found that the Respondents interfered with, restrained, and coerced
their employees by various types of conduct. In addition, they discouraged mem-
bership in the Union by discriminatorily discharging two employees. Because of the
underlying purpose and tendency of this unlawful conduct, I conclude that there ex-
ists danger that the Respondents will in the future commit other unfair labor prac-
tices. Accordingly, it will be recommended that the Respondents cease and desist
from the unfair labor practices found and also from in any other manner infringing
upon the rights guaranteed in Section 7 of the Act.
Affirmatively, it will be recommended that the Respondents offer to Ferguson im-
mediate reinstatement to his former or a substantially equivalent position, without
prejudice to his seniority and other rights and privileges previously enjoyed, and
jointly and severally make him whole for any loss of earnings he may have suffered
because of the discrimination against him, by paying to him a sum of money equal
to the amount he normally would have earned from September 22, 1952, the date
of the discrimination against him, to the date of the offer of reinstatement, less his
net earnings during the said period. As the Respondents have already reinstated
Hollinger, it will not be recommended that they reinstate him. However, it will be
recommended that the Respondents jointly and severally make Hollinger whole for
any loss of earnings he may have suffered because of the discrimination against
him, by paying to him a sum of money equal to the amount he would normally
have earned from October 6, 1952, the date of the discrimination against him, until
July 13, 1953, the date of his reinstatement, less his net earnings during the said
period. The back pay provided for herein shall be computed on a quarterly basis in
the manner established by the Board; earnings in one particular quarter shall have no
effect on the back-pay liability for any other period.
[Recommended Order omitted from publication.]
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT discourage membership in The American Federation of Labor,
or any other labor organization of our employees, by discharging and refusing
to reinstate them, or in any other manner discriminating in regard to their hire,
tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate our employees regarding their union activities, af-
filiations, or sympathies or how they intend to vote in a Board-conducted election.
WE WILL NOT threaten loss of employment or other reprisals against our em-
ployees because of their membership in or assistance to the above-named union,
or any other labor organization.
WE WILL NOT keep under surveillance the concerted activities of our
employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL offer to Charlie Dean Ferguson immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to any
seniority or other rights and privileges previously enjoyed.
WE WILL jointly and severally make whole Charlie Dean Ferguson and Belton
Hollinger for any loss of pay suffered as a result of the discrimination against
them.
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named Union or any other labor organization, except to the extent
that this right may be affected by agreements in conformity with Section-8 (a) (3)
of the National Labor Relations Act, as amended October 22, 1951.
T. A. McGAHEY, SR., T. A. McGAHEY, JR.,
MRS. ALTIE MCGAHEY JONES, AND MRS.
WILDA FRANCES MCGAHEY HARRISON,
D/B/A COLUMBUS MARBLE WORKS, A -
PARTNERSHIP,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
GEORGE SHERIDAN AND MURRAY DACKS D/B/A ROYAL FLEET SERVICE
and TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS, LOCAL
UNION No. 390 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL.
Case No. 10-CA-1494. March 29,1955
Decision and Order
On December 30, 1953, Trial Examiner John H . Eadie issued his
Intermediate Report in the above-entitled proceeding , finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action , as set forth in a copy of the Interme-
diate Report attached hereto. The Trial Examiner further found
111 NLRB No. 191.