Dewey Brothers, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1970

187 N.L.R.B. 137 (N.L.R.B. 1970)

DEWEY BROTHERS, INC.
Dewey Brothers, Inc. and International Union of
District 50, Allied and Technical Workers of United
States and Canada . Cases 11-CA-3751 and
I1-CA-3790
December 11, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
137
Order of the Trial Examiner set forth in his Supple-
mental Decision and hereby orders that the Respon-
dent, Dewey Brothers, Inc., Goldsboro, North Caroli-
na, its officers, agents, successors, and assigns, shall
take the action set forth in that recommended Order.
i The findings and conclusions of the Trial Examiner which we adopt
are based , in part, upon his credibility determinations , to which
Respondent has excepted After a careful review of the record herein, we
conclude that the Trial Examiner 's credibility findings are not contrary to
the clear preponderance of the relevant evidence and, accordingly , we find
no basis for disturbing them Standard Dry Wall Products, Inc, 91 NLRB
544, enfd 188 F 2d 362 (C A. 3)
On April 29, 1969, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in other unfair
labor practices alleged in the complaint and recom-
mended that those allegations be dismissed. Thereaft-
er, the General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
On August 11, 1969, the National Labor Relations
Board issued an Order Remanding the Case to the
Trial Examiner for the preparation and issuance of a
supplemental decision setting forth the resolution of
certain credibility issues discussed therein. On July 28,
1970, the Trial Examiner issued his Supplemental
Decision finding that the Respondent had engaged in
additional 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 Supplemental Decision. Thereafter the
Respondent filed exceptions to the Trial Examiner's
Supplemental Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Natiortal Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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, his Supplemental Decision, the
exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the recommended
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: These consolidated
cases were tried at Goldsboro, North Carolina, on March
18-19, 1969,1 pursuant to charges filed by International
Union of District 50, United Mine Workers of America,
herein called the Union, on October 7 and November 29
(amended, respectively, on October 23 and January 31),
and pursuant to a consolidated complaint issued February
12. The primary issues are whether the Respondent, Dewey
Brothers, Inc., herein called the Company, discriminatorily
discharged two employees in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act, as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief filed by the Company, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company, a North Carolina corporation, is engaged
in the fabrication of steel and metal building supplies at its
Goldsboro, North Carolina, plant and foundry where it
annually receives raw materials valued in excess of $50,000
directly from outside the State and from which it ships
annually finished goods valued in excess of $50,000 directly
to points outside the State. I find that the Company is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Discharge of Miller Johnson
Miller Johnson (hired about 1959) has worked for about 7
years in the foundry , lining the holding ladle and pulling
the bull ladle. During the summer and fall of 1968 , he took
an active part in the Union 's organizing campaign , signing
a union card , attending most of the union meetings, and
talking to fellow employees about signing authorization
cards. About November 1, a week before his discharge, he
asked his new foreman, James A . Coley (who had attended
several union meetings with him before being promoted to
i All dates, unless otherwise indicated , are in the penod from October
1968 to March 1969
187 NLRB No. 17
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman on October 14), "Coley , it is just about union time,
ain't it?" Coley answered (indicating knowledge of
Johnson's continued union support), "Yes. Have you got
your boys ready?" Johnson smiled and walked away.
On November 8, Foreman Coley discharged
Johnson-allegedly for failing to follow instructions for
lining the ladle. Thereafter , on February 6, the Company
reinstated Johnson to perform similar work, lining two
small ladles and pulling the bull ladle , at the same $1.75
hourly rate . Johnson was disqualified from receiving
unemployment compensation from November 9 through
January 3 . The question is whether the assigned reason for
Johnson's discharge was pretextual.
Johnson testified that about 5:30 p .m. on November 7
(the day before his discharge ) he overheard President
William R. Helms talking in the foundry to Coley and Mill
Foreman Frank Wiggins. At the time, Johnson was taking a
break , standing a few feet away . He overheard Helms ask
Wiggins , "Who's in charge of Johnson?" Wiggins pointed
to Coley. Helms asked , "Coley, can you discharge
Johnson?" Coley , kicking his feet against the ground, said
he could if he had to . Helms responded, "That is all I want
to know , because if you can't I will get somebody who
could ." Helms then left. About 30 minutes later , Johnson
walked out to the scrap iron pile where Foreman Coley was
standing and asked , "Coley, were you all talking about
discharging me? If you were , I won 't come back to work, I
will stay at home and then you won't have to discharge me.
You is my brother at the [Masonic] Lodge ." Coley
responded , "No, Johnson , I am not going to tell you to stay
home ." (Coley, when called as a defense witness , admitted
part of this conversation . Coley testified that on the evening
before the discharge, Johnson "came to me and said he had
heard Mr. Helms instruct me to discharge or fire him, and
he said if that was so , he wouldn't come back the next day;
and I said that that wasn 't true .") The Company argues in
its brief that Johnson's testimony should not be credited,
and that there was no such conference in the foundry
between Helms and the two foremen . However, in reciting
the facts , the Company ignores Coley's testimony
(confirming Johnson 's) that Johnson "came to me and said
he had heard Mr. Helms instruct me to discharge or fire
him." The Company offers no explanation for such a
discussion between Johnson and Coley if Johnson had not
overheard the foundry conference concerning Johnson's
discharge . Moreover, Johnson impressed me as an honest,
trustworthy witness . I credit his testimony about Helms'
statements in the foundry and discredit the denials of
Helms and Coley , neither of whom impressed me as a
credible witness . (Wiggins did not testify.)
Johnson further credibly testified that the next morning,
November 8, about 7 : 30, Foreman Coley called him over to
where the slag and iron had been dumped from the holding
ladle. (The ladle , which collects molten iron pouring from
the cupola , is dumped out daily to remove the remaining
iron and slag . Not all the iron is drained from the holding
ladle when the iron is poured intermittently during the day
from the holding ladle to the bull ladle , which is pulled
along a track to where the molds are filled . Dirt is thrown
on the track to prevent the dumped slag and iron from
damaging the track .) Coley pointed out the dumped slag
and iron and said , "Johnson , it looks like I am going to
have to let you go ." Johnson responded, "It's just a little bit,
it isn 't as much as it has been, is it?" Coley answered, "It
isn't as much , but it is too much . I am going to have to let
you go." Johnson asked , "Well, why didn 't you tell me
when I finished raising the dam like you asked me. . . . I
asked you was it right, was this like the way you wanted it,
you says , yes, it was fine.... Why didn 't you tell me to
raise it , and then I could raise it some more." Coley said,
"Well, I can't help it, I am going to have to let you go. Go
punch out and come back at 9 o'clock and get your
money." As Johnson was leaving, he asked Foreman
Wiggins , "Why did you all fire me?" Wiggins answered, "I
didn't have nothing to do with it ." Johnson credibly
testified that Coley , his new foreman, had talked to him
only once about the way he lined the holding ladle. That
was a few days earlier . Coley told him to raise the dam, so
that more of the iron would drain into the bull ladle. "I
raised the dam, and I called Mr. Coley over to the holding
ladle, and I asked him was that like that way he wanted it,
and he said yes, that was just fine." Coley told him that he
was a good ladle liner . (Johnson gave undenied testimony
that the day before the trial, there was "a whole lot more"
iron and slag which had been dumped from the holding
ladle than there had been on the day he was discharged. He
called this to Coley 's attention , but Coley did not criticize
the person who had lined the ladle.)
Foreman Coley gave this account:
Q. Will you describe what happened when you saw
that iron spilled on the track?
A. Yes, at the time I observed this amount of iron
on the track, Johnson was working on the upper holding
ladle, and I called him over , and I showed him the iron
on the track , and I told him it didn't seem he was going
to try to follow my instructions, and I was going to have
to discharge him.
Q. Did Mr. Johnson make any remark to you after
you discharged him?
A. No.
Coley did not claim that the track was damaged on this
occasion . He did claim that he had criticized, or warned,
Johnson three times in the previous week and a half, but he
did not give any details , nor explain how Johnson (who had
been lining the ladle for 7 years ) was doing it wrong. From
his demeanor on the stand , he impressed me as being most
unassertive, and not one who would take it on himself to
discharge such an experienced workman . He appeared to
be trying to give answers which would please the Company,
rather than attempting to give an accurate account of what
happened. I discredit his version of the incident, his
testimony that he had warned Johnson three times , and his
claim that all the iron would drain into the bull ladle if the
holding ladle is properly lined.
On the basis of all the credible evidence, I find that
Johnson was a good , efficient employee and that the reason
for his discharge was clearly pretextual . Having credited
Johnson's testimony , which indicates that President Helms
did instruct Foreman Coley to discharge Johnson, I find
that the real reason for the discharge was Johnson's union
support . (Having found that Helms was not a credible
DEWEY BROTHERS, INC.
witness, I discredit his denial of knowledge of Johnson's
union activity.)
The Company's discriminatory motivation is further
demonstrated by the conduct of President Helms thereaft-
er. Johnson credibly testified that about 10 days after the
discharge he talked to Helms first at his home and later at
the office, stating "I have just got to have a job." As they
were talking in the office, Helms said, "Johnson, I went out
and I checked your case out. You are a good worker and
you are a good ladler." The conversation was later
interrupted when Helms was told he had a "mighty
important" and "urgent" telephone call. Helms left the
office for about 5 minutes. Upon returning, he said, "Yes,
Johnson, that was a mighty important telephone call.
Johnson, I am so mad I don't know what to do. That
telephone call we had. You had the damned union man
running around in your car, in your front seat, going
around to the homes of my employees, from house to
house. I was going to be fair with you, but I cannot do it
now." (The day before, Johnson had driven an NLRB field
examiner to a witness' home and back to the motel. No
union representative was in the car.) Johnson denied the
accusation, and Helms said, "Maybe this will blow over in
about two or three weeks. You can call me back again."
Several days later, Johnson did call back, saying he still
could not find ajob. Helms responded, "Johnson, I haven't
got over that deal we talked about the other day." The
Company did not reinstate Johnson until February 6.
(When Helms testified as a defense witness, he admitted
having postdischarge conversations with employees. He did
not deny Johnson's testimony about his postdischarge
conversations with Johnson.)
I accordingly find that the Company discriminatorily
discharged Miller Johnson on November 8 and refused to
reinstate him until February 6, in violation of Section
8(a)(3) and (1) of the Act.
B. Discharge of Foy J. Peel, Jr.
During the election campaign , the Company discharged
Foy J. Peel, Jr ., who had not signed a union card or
engaged in any union activity, but whose wife participated
in an organizing drive at another plant . The General
Counsel contends that he was discharged because of his
wife's union support , whereas the Company contends that
he was a supervisor and discharged because his attitude was
poor and because he was complaining about his job and his
rate of pay . Of course , if he were in fact a supervisor, his
discharge for the reason alleged by the General Counsel
would not be illegal.
Three days before Peel was discharged , counsel for the
Company and the Union agreed at the hearing in the
representation case that he was a supervisor and should be
excluded from the unit.
Peel had worked in the steel shop, where the metal was
cut, since 1959. He spent part of his time doing manual
labor , operating various machines . The remainder of the
139
time he directed the work of five or six lower-paid
employees and handled orders from customers.
According to Peel's testimony, his direction of the work
was merely routine, and he had no supervisory authority.
He appeared, however, to be deliberately attempting to
belittle his status. After considering all the evidence, I find
that he responsibly directed the work of the others in the
shop and that he was therefore a supervisor, as previously
agree by the Company and the Union.
Accordingly, I find that his discharge, as a supervisor, did
not violate Section 8(a)(3) and (1) of the Act.
There being no allegations in the complaint of any
Section 8(a)(1) violations directed toward Peel as a
supervisor, and no evidence to support the Section 8(a)(1)
allegations concerning conduct directed toward
"employees," I shall recommend that the separate Section
8(a)(l) allegations be dismissed.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Miller Johnson on
November 8 and refusing to reinstate him until February 6,
the Company engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act.
2. The October 11 discharge of Foy J. Peel, Jr., a
supervisor, did not violate the Act.
THE REMEDY
I shall recommend that the Respondent be ordered to
cease and desist from the unfair labor practices found and
from like or related invasions of the employees' Section 7
rights; to give to Miller Johnson backpay, from November
8, 1968, through February 6, 1969, computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289, plus
interest at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716; and to post
appropriate notices.
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent, Dewey Brothers, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee because of his membership in or activities on
behalf of International Union of District 50, United Mine
Workers of America, or any other labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Miller Johnson whole for his lost earnings, in
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy."
(b) Preserve and make available to the Board, or its
agents, upon request, for examination and copying, all
payroll records and reports, social security payment
records, timecards, personnel records and reports, and all
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Goldsboro, North Carolina, plant copies of
the attached notice marked "Appendix."2 Copies of the
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.3
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
2 In the event that 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. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing and Order" shall be substituted for the words "a
Decision and Order "
3 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 11, 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, an
agency of the United States Government.
WE WILL PAY Mr. Miller Johnson for the earnings he
lost as a result of his November 8, 1968 , discharge, plus
6 percent interest.
WE WILL NOT discharge or discriminate against any
employee for supporting International Union of
District 50, United Mine Workers of America, or any
other union.
WE WILL NOT interfere with our employees' union
activities.
DEWEY BROTHERS, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice may be directed to
the Board's Regional Office, 1624 Wachovia Bldg., 301
North Main Street, Winston-Salem , North Carolina 27101,
Telephone 919-723-2303.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
MARION C.LADWIG,Trial Examiner: On August 11, 1969,
the Board issued its Order Remanding Proceeding to Trial
Examiner,' for the preparation and issuance of a Supple-
mental Decision, stating: "In his [April 29, 1969] Decision,
the Trial Examiner concluded that Respondent [Dewey
Brothers, Inc.] had not violated Section 8(a)(3) or (1) of the
Act by discharging Foy J. Peel, Jr., whom he found to be a
supervisor. However, the record contains testimony that
Peel was given instructions to find out how the employees
felt about the Union [International Union of District 50,
Allied and Technical Workers of United States &
Canada2], which instructions Peel refused to carry out. The
General Counsel contends , inter alia, that Peel was
unlawfully discharged because of his refusal to carry out
these instructions . He also alleges Peel was unlawfully
discharged because of his wife's union activities at another
plant. The testimony in the record bearing upon the issue of
whether or not instructions to report on employee union
activity were ever in fact given Peel and that testimony
concerning the actual reason Respondent discharged Peel is
in conflict in material respects and no resolution on these
matters, including conflicts in the testimony, has been
made by the Trial Examiner."
The Board's Order requires that the Supplemental
Decision set forth "the resolution of the credibility issues
discussed above and subsequent findings and conclusions
with respect to the unfair labor practices alleged in the
complaint." (As amended at the trial, the complaint alleges
that the Company unlawfully discharged Peel because it
"suspected said employees joined or assisted the Union or
engaged in union activities or concerted activities for the
purpose of collective bargaining or mutual aid and
protection, and/or because of said employee's wife's union
activity.")
Credibility Findings
Foy J. Peel, Jr., testified that on the afternoon of October
8, 1968 (following the hearing that morning in the
representation proceeding), Foreman Allen Barwick told
him to accompany Barwick to President William R. Helms'
i Although promptly served on the parties , the Order was not called to
the attention of the Trial Examiner until July 22, 1970.
2 Formerly, International Union of District 50, United Mine Workers of
America
DEWEY BROTHERS, INC.
office. When they reached the office, Helms was not there,
but "there were two lawyers that Mr. Barwick identified as
company lawyers." (They were Attorneys Robert D.
Wilkins and Michael L. Lowry.) After telling him that the
Company and the Union had agreed that morning that he
was a supervisor and that he could not vote in the election,
Attorney Wilkins asked him if his wife worked at General
Electric and if she was active in the Union down there. He
answered yes, said that she attended meetings and handed
out leaflets, and asked "what that had to do with Dewey
Brothers." Wilkins answered, "Not anything." Wilkins then
asked him what he thought about a union at Dewey
Brothers , and he answered that he would not express an
opinion. Wilkins stated that he could not be "half-pregnant
about it," that he had to be "all of the way or none at all."
Wilkins said "he wanted me to know that I was with the
Company and he didn't expect me to campaign for the
Union. I told him I wouldn't campaign." Wilkins then told
him that he could go, and told Foreman Barwick to wait.
Peel further testified that about an hour later he asked
Foreman Barwick "why they brought my wife into it, and
he said Dewey Brothers and GE had company lawyers
fighting the union so they could run their business like they
wanted to." Peel stated that he supposed that since "they
brought my wife into it," he would probably be looking for
a new job, that "They will probably put me on the list .. .
since they've brought my wife's name into it, since my wife
is in the union at GE, they will think I am trying to bung
one in here ." Barwick responded, "You won't be on the list,
if anybody gets more money you probably will too."
Barwick then asked him how the men he worked with felt
about the Union, and "asked me couldn't I talk to them and
find out how they felt about the Union." Peel said no, that
he was going to have to work with the men after this thing
was over with and that he was not a stool pigeon. Barwick
said the Company had to know how they felt, and Peel
responded, "Well, then, damn it, you will have to ask them,
because I ain't going to." That ended the conversation, but
later that afternoon, Barwick called him into Barwick's
office, "told me that the lawyer had called him back into
Mr. Helms' office, and they had two reports out of the shop
and one out of the foundry, that I was a union leader, that I
was a leader for the Union." Peel "told him he could believe
what he wanted to, that I didn't even know the name of the
Union." (As found in my original Decision, Peel had not
signed a union card or engaged in any union activity.)
Thus, according to Peel, Company Attorney Wilkins (in
the presence of Attorney Lowry and Foreman Barwick)
asked Peel on October 8 if his wife was active in the union
at General Electric, and, when Peel later asked Barwick
"why they brought my wife into it," Barwick told him that
"Dewey Brothers and GE had company lawyers fighting
the union so that they could run their business like they
wanted to." (Peel's wife credibly testified that an election
was held at the General Electric plant on October 3 and
that election objections were filed.) Company Attorneys
Wilkins and Lowry did not testify; they represented the
Company at the trial. When Foreman Barwick was called
as a defense witness, the company counsel did not
interrogate him about this testimony-despite the fact that
141
the complaint specifically alleges, in the alternative, that
Peel was discharged because of his wife's union activity.
Also, according to Peel's testimony, Foreman Barwick
asked him to talk to the employees he worked with and
"find out how they felt about the Union," and Peel refused
to do so. Although the complaint does not specifically
allege that Peel's refusal was a reason for his discharge, the
complaint alleges that Peel was unlawfully discharged, and
the Company litigated this basis for the discharge when its
counsel asked Barwick the question on direct examination,
"Did you have a conversation with Mr. Peel in which you
asked him about the union activities of his fellow
employees?" Barwick answered, "Not that I recall." (On
cross-examination, when asked about this, Barwick first
repeated, "I testified I could not recall ." However, later,
when asked if it was possible that he might have mentioned
the Union to Peel, he answered "No, sir," and when asked,
"You never said a word to him about the Union, is that
your testimony," he answered positively, "Right.") Barwick
impressed me generally as a credible witness , and I credit
other parts of his testimony (particularly his, rather than
Peel's, testimony about Peel's supervisory status). However,
he did not appear to be entirely candid when he twice
claimed that he did not remember talking to Peel about the
Union, but when pressed further, positively denied ever
saying a word to Peel about the Union.
As found in my original Decision, Peel appeared to be
deliberately attempting to belittle his supervisory status. He
impressed me as being less than forthright when giving that
testimony on cross-examination. However, I do not believe
that he was fabricating the above-quoted testimony given
on direct examination, concerning the conversations with
Company Attorney Wilkins and Foreman Barwick. I
therefore credit this part of his testimony.
Pretextual Basis for Discharge
Three days after Company Attorney Wilkins questioned
Peel about his wife's union activity in another plant and
Peel refused Foreman Barwick's request to find out how
employees felt about the Union, Barwick discharged him.
Peel, the only witness who gave testimony about what was
said at the time of the discharge, credibly testified that on
October I1 Barwick told him "that if I wasn't satisfied with
my wages, he thought I would be better off if I left . . . You
can probably find anotherjob, you :aught not be making as
much as you are, but in a year or so you will be making
more." Peel responded, "Well, there is nobody satisfied
with what they are making, everybody wants more . . . I
haven't been looking for a job," and he did not have one.
He then added, "If you are going to start that junk, why
don't you just go ahead and tell me it is on account of the
Union?" Barwick answered, "You are correct, you didn't
take the best interests and consideration of the company
into account," and handed him his final paycheck. Peel's
October 15 separation notice indicated that he was "Fired
because of general discontent with wages and working
conditions." President Helms testified that he was out of
town at the time but that, when he returned, he was told, by
Foreman Barwick or Personnel Manager Jones, that "Peel's
attitude as supervisor was quite poor, he was quite unhappy
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about his job, he was complaining about his rate of pay;
they were the reasons given me." (Emphasis supplied.)
The Company did not present any direct testimony why
Peel was discharged. When called as a defense witness,
Foreman Barwick testified about earlier conversations with
Peel, but nothing about why the Company decided when it
did to discharge him. He admitted that it had been about 6
weeks since Peel had complained about not getting enough
money.
After considering all the evidence, including Peel's
credited testimony about his conversations with Company
Attorney Wilkins and Foreman Barwick on October 8, and
his conversation with Barwick at the time of the discharge, I
find (a) that the Company seized on Peel's earlier-expressed
complaints about the amount of his compensation as a
pretext for discharging him, and (b) that his wife's union
activity in another plant and his refusal 3 days earlier to
question employees about their union sympathies were
motivating reasons for the discharge. After further
consideration, I also find that these reasons for the
discharge were either specifically alleged or duly litigated at
the trial and that the discharge of Peel, a supervisor, for
these reasons tended to interfere with employees' Section 7
rights, in violation of Section 8(a)(1) of the Act.
REVISED CONCLUSIONS OF LAW
1. By discriminatorily discharging Miller Johnson on
November 8, 1968, and refusing to reinstate him until
February 6, 1969, the Company engaged in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.
2. By discharging Foy J. Peel, Jr., a supervisor, on
October 11, 1968, the Company violated Section 8(a)(1) of
the Act.
THE REMEDY
The Respondent will be ordered to cease and desist from
the unfair labor practices found and from like or related
invasions of the employees' Section 7 rights; to take certain
affirmative action designed to effectuate the policies of the
Act; to offer reinstatement to Foy J. Peel, Jr., with backpay
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, plus interest at 6 percent per
annum as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716; to give to Miller Johnson backpay, from
November 8, 1968, through February 6, 1969, computed in
the same manner, plus 6 percent interest; and to post
appropriate notices.
Accordingly, on the basis of the findings in the original
Decision issued April 29, 1969, and the foregoing
supplemental and revised findings and conclusions, and on
the entire record, I issue pursuant to Section 10(c) of the
Act the following recommended:
3 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
ORDER
Respondent, Dewey Brothers, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee because of his membership in or activities on
behalf of International Union of District 50, Allied and
Technical Workers of United States & Canada, or any
other labor organization.
(b) Discharging any supervisor because of his wife's
union activity at another plant, or because he refused to
interrogate employees concerning their union sympathies.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Foy J. Peel, Jr., immediate and full reinstate-
ment to his former job or, if the job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
in the manner set forth in the section of the Trial
Examiner's Supplemental Decision entitled "The Remedy."
(b) Notify the above-named person if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces.
(c) Make Miller Johnson whole for his lost earnings, in
the manner set forth in the section of the Trial Examiner's
Supplemental Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(e) Post at its Goldsboro, North Carolina, plant copies of
the attached notice marked "Appendix.' 13 Copies of the
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 11, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.4
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
4 In the event that the recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region It, in wnting, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
DEWEY BROTHERS, INC.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act by discharging
an employee for supporting a union and by discharging a
supervisor because he refused to question employees about
their union support and because his wife engaged in union
activity at another plant.
WE WILL pay Mr. Miller Johnson for the earnings he
lost as a result of his November 8, 1968, discharge, plus
6 percent interest.
WE WILL offer Mr. Foy J. Peel, Jr., full reinstatement
and pay him for the earnings lost as a result of his
October 11, 1968, discharge, plus 6 percent interest.
WE WILL NOT discharge or discriminate against any
employee for supporting International Union of
Distract 50, Allied and Technical Workers of United
States & Canada, or any other union.
WE WILL NOT discharge any supervisor for refusing to
question employees about their union support or
143
because his wife engages in union activity at another
plant.
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
Dated By
DEWEY BROTHERS, INC.
(Employer)
(Representative) (Title)
Note: We will notify the above-named discharged supervi-
sor, if presently serving in the Armed Forces of the United
States , of his right to full reinstatement , upon application,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem , North Carolina 27101, Telephone 919-723-9211
Ext. 360.