Dillingham Marine and Mfg. Co.

National Labor Relations Board - Board Decisions

Dec 19, 1978

239 N.L.R.B. 904 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dillingham Marine and Manufacturing Co., Fabri-
Valve Division and International Association of Ma-
chinists and Aerospace Workers, AFL-CIO. Case
26-CA-6667
December 19, 1978
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On March 23, 1978, Administrative Law Judge
John C. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent ' and the Gener-
al Counsel filed exceptions and supporting briefs,
and Respondent filed a brief in opposition to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and
to adopt his recommended Order as modified
herein.4
The Administrative Law Judge found that Re-
spondent's plant manager, T. J. Harrison, warned
employees to keep authorization cards and union
materials out of the work area and toolboxes located
I Respondent has requested oral argument. This reguest is hereby denied.
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry, Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings. We have
further considered Respondent's contention that the Administrative Law
Judge has evidenced a bias or at least an appearance of bias in this proceed-
ing. We have carefully considered the record and attached Decision and
find these charges of bias unsupported and without merit.
3 Although we agree with the conclusion of the Administrative Law Judge
that Plant Manager Harrison's statement to employees that it was the youn-
ger employees who were "pushing" the Union and that he knew who they
were created an impression of surveillance in violation of Sec. 8(a)(1), we
disavow his finding that this statement also constituted an unlawful threat.
Additionally, we conclude that Harrison's remark to employees that he
knew the man responsible for the union drive in the plant and his accompa-
nying threat to fire him created not only an impression of surveillance, as
found by the Administrative Law Judge, but also constituted a threat within
the meaning of Sec. 8(a)(l).
The Administrative Law Judge concluded, and we agree, that Respon-
dent violated Sec. 8(aX3) and (1) by demoting employees Herbert Smith,
Willis Burley, and J. Horne. Although he included appropriate provisions in
his recommended remedy and notice for such violations, the Administrative
Law Judge inadvertently failed to include specific provisions with respect to
these employees in his recommended Order. We shall modify the recom-
mended Order accordingly.
there. He concluded that this restriction was not vio-
lative of Section 8(a)(1) of the Act because it was
clearly understood to apply only to work areas and
toolboxes located there. We disagree.
It is well established that under Section 7 employ-
ees generally have a protected right not only to pos-
sess, but also to display, union materials at their
place of work.5 Inasmuch as there is no evidence that
Respondent restricted the employees' possession of
any other personal items in the work area or that the
employees' possession of union materials interfered
with production or discipline at Respondent's plant,
we find that Harrison's warning to employees con-
cerning the possession of authorization cards and
union materials in the work area constituted a threat
and coercion within the meaning of Section 8(a)(1) of
the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following Conclusion of Law for the
Administrative Law Judge's Conclusion of Law 4:
"4. By informing employees that he knew who at-
tended the union meeting of April 7, 1977, and who
signed cards; holding up a union authorization card
and reading from union-distributed literature; warn-
ing employees that signing a union card would follow
them the rest of their lives; stating to employees that
it was the younger employees who were pushing the
Union, and he knew who they were; warning em-
ployees to keep authorization cards and union mate-
rial out of the work area and the toolboxes located
there; solicitng employees who were pushing the
Union to see him about their problems; stating that
he knew the man who was responsible for this union
drive and threatening to fire him; stating that compa-
ny meetings about the Union cost $12,000, and Re-
spondent could not make up that money without a
layoff; and interrogating an employee and threaten-
ing to demote an employee because of their union
views and acitvities, Respondent has engaged in, and
is engaging in, unfair labor practices in violation of
Section 8(a)(l) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Dill-
ingham Marine and Manufacturing Co., Fabri-Valve
Division, Amory, Mississippi, its officers, agents, suc-
See. e.g.. Tekform Products Co., 229 NLRB 733. 743-744 (1977); Halli-
burton (ompan,, 168 NLRB 1091, 1092 (1968).
904
DILLINGHAM MARINE AND MFG. CO.
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
I. Substitute the following for paragraph 1(c):
"(c) Interrogating employees about the union aci-
tivities of their fellow employees; threatening or
coercing employees by warning them that signing of
a union card would follow them the rest of their
lives; warning employees to keep authorization cards
and union material out of the work area and the tool-
boxes located there; threatening to fire the man re-
sponsible for the union drive; threatening the demo-
tion of an employee; and stating that company
meetings about the Union cost $12,000 and had to be
made up by a layoff, because of employees' union
views or support for or activities on behalf of the
Union."
2. Insert the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly:
"(b) Offer Herbert Smith and Willis Burley their
former jobs on the day shift or, in the event those
jobs no longer exist, substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of earnings they may have suffered as a result of
Respondent's discrimination against them, plus in-
terest, in the manner set forth in the section entitled
The Remedy, and make J. Horne whole for any loss
of earnings incurred in his transfer on April 18, 1977,
until his voluntary termination from Respondent,
with interest."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily lay off or termi-
nate.employees because of their activities on be-
half of or support for the International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization.
WE WILL NOT discriminatorily eliminate job
classifications or transfer employees because of
their activities on behalf of or support for the
International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other la-
bor organization.
WE WILL NOT threaten or coerce employees
by-
Warning employees that signing a union
card would follow them the rest of their lives.
Warning employees to keep union authori-
zation cards and union material out of the
work areas and toolboxes located there.
Threatening to fire the man responsible for
the union drive.
Soliciting our prounion employees to dis-
cuss their problems with management.
Interrogating employees about their union
activities and inquiring about the leader of the
union movement.
Threatening to demote employees active on
behalf of the Union.
Stating that conducting employee meetings
about the Union cost the Company $12,000
and could only be made up by a layoff.
WE WILL NOT create an impression of surveil-
lance by-
Telling employees that the employees who
attended a union meeting and signed cards
were known.
Holding up a union authorization card and
reading from union-distributed literature.
Stating that it was the younger employees
who were pushing for the Union and that
such employees were known.
Telling employees that the Company knew
who the union ringleader was.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the cxer-
cise of rights protected under the National La-
bor Relations Act, as amended.
WE WILL offer Robert Fussell, Warren D. Bur-
dine, Billy Dobbs, Sammy Ellis, Tuck Jones.
Brad Powell, Tommy Irvin, Gary D. Morgan,
Guy W. Powell, Fred Davis, Willie Randall, Ha-
rold Standifer, Fred Worthingon, Steve Culpep-
per, Frank Gaddy, and Ollie Tucker immediate
and full reinstatement to their former jobs or, if
these jobs no longer exist, to substantially equiv-
alent positions of employment, without preju-
dice to their seniority or other rights and privi-
leges, and pay them for any loss of earnings
suffered because of their discriminatory layoff
or termination on April 15, 1977, or thereafter,
with interest.
WE WILL offer Herbert Smith and Willis Bur-
ley their former jobs on the day shift or, in the
event those jobs no longer exist, substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and WE
WILL make them whole for any loss of earnings
suffered because of the discrimination against
them, with interest.
WE WILL make J. Horne whole for any loss of
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnings incurred in his transfer on April 18,
1977, until his voluntary termination from the
Company.
DILLINGHAM MARINE AND MANUFACTURING
Co., FABRI-VALVE DIVISION
DECISION
STATEMENT OF THE CASE
JOHN C. MILLER. Administrative Law Judge: A hearing in
this case was held in Aberdeen, Mississippi, on August 8, 9,
and 10 and again on September 19, 20, and 21, 1977, when
hearings were resumed. The amended complaint alleges
that on April 15, 1977, Respondent permanently laid off
and failed to reinstate 15 named employees because such
employees joined or assisted the Union or engaged in con-
certed activity with other employees. It further alleges: that
the job classification of employee Robert Fussell was elimi-
nated on or about April 15, 1977, and that employee Fus-
sell was terminated on April 19, 1977, for discriminatory
reasons; that employee Charles Harmon was discriminato-
rily transferred from the day to the night shift; that em-
ployees J. Homer, Herbert Smith, and Willis Burley were
demoted for discriminatory reasons on or about April 18,
1977; that employees J. Horne and Charles Harmon were
constructively terminated thereafter; and that Respondent
engaged in various and sundry unlawful action, i.e., inter-
rogation, threats, and creating an impression of an surveil-
lance of employees' union activities. The above activities
are alleged to be violative of Section 8(aX3 ) and (I) of the
National Labor Relations Act, as amended.
After the close of the hearing, briefs were received from
the parties and have been duly considered; upon the entire
record,' including my observation of the witnesses' de-
meanor, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent, a corporation doing business in the State of
Mississippi, is engaged in the manufacture of valves and
has an office and plant located in Amory, Mississippi,
where the present controversy arose. During the past 12
months, Respondent purchased and received at its Amory,
Mississippi, location products valued in excess of $50,000
directly from points located outside the State. Respondent
also sold and shipped from its Amory, Mississippi plant
products valued in excess of $50,000 directly to points out-
side the State of Mississippi. The Respondent admits the
above facts, and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. STATUS OF THE LABOR ORGANIZATION
Respondent's answer admits and I find that the Interna-
tional Association of Machinists and Aerospace Workers,
[ Errors in the transcript have been noted and corrected.
AFL-CIO, is a labor organization within the meaning of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Respondent operates a plant at Amory, Mississippi, and
two facilities in Portland, Oregon. The alleged unfair labor
practices concern events which occurred solely at the Amo-
ry plant. In the month of April 1977 Respondent held some
four meetings with employees, while representatives of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, hereafter called the Union, held two
organizational meetings, one on April 7 and another on
April 11, 1977. On April 15, 1977, Respondent, at a meet-
ing at 3:15 p.m. and one shortly thereafter for the second
shift, announced that 15 men would be laid off, 10 from
the first shift and 5 from the second, because of "high in-
ventory." These layoffs and the ramifications thereof, i.e.,
bumping and constructive discharges, largely flow from the
initial layoff of those 15 men. The classification of mainte-
nance mechanic was eliminated, and thereafter Fussell, the
individual concerned who had bumped to a lower paying
job, was terminated for failure to perform his job properly
in the deburr operation of the plant. The 8(aX 1) allegations
primarily involve conduct which occurred in the meetings
in the period from April 7 through April 15, 1977. The
dates of the meetings are undisputed, but in many in-
stances what occurred at the meetings is in dispute.
I. Employer employee meetings prior to April 1977
A number of employees credibly testified 2 that, in vari-
ous meetings between December 1976 and April 1977,
Plant Manager T. J. Harrison assured employees that
there would be no layoff of employees and that in the event
work got slow, people would be reassigned within the plant
or vacations would be taken early. By March 1977 Harri-
son, in comments to employees at meetings, appeared more
optimistic that layoffs would be unnecessary and that with
the advent of the "'71 valve," a new product line, there
would be an increased amount of work and even the possi-
bility that new employees would have to be hired. Harrison
testified that he never stated employees would definitely
not be laid off but conceded that there had never been any
layoffs in the past and that he had been hopeful of avoiding
any layoffs.
2. Employer meeting of April 7, 1977
At a meeting of employees Bruce Hobbs, president of
Respondent, was introduced by Harrison and congratulat-
ed employees on the cleanliness of the plant and the good
work they were doing. According to the credited testimony
of employees Harold Standifer and Gary Morgan, Harri-
son stated at that meeting that the Company had had a
2Employees Harold Standifer, Guy Powell, Charles Harmon, Tommy
Irvin. Willis Burley, and Robert Fussell.
906
DILLINGHAM MARINE AND MFG. CO.
good month in March and that there was a sales goal of
$400,000 for April, and there was no longer any fear of a
layoff. If the Company achieved its goal of $500,000 of
sales a month and if the 71 valve (a new product) came into
production, it would probably require the hiring of addi-
tional employees.
3. Union meeting the evening of April 7, 1977
The Union had its first organizational meeting of em-
ployees in downtown Amory attended by some eight em-
ployees and a union representative, Johnny Prince. A num-
ber of employees testified that they attended the meeting,
including, inter alia, Robert Fussell, Gary Morgan, and
Stewart Holliday, and of those attending five signed union
authorization cards. The meeting concerned the proce-
dures involved in getting a union in Respondent's plant
and the advantages of a union.
4. Employer meeting of April 8, 1977
It is undisputed that on April 8, 1977, T. J. Harrison
conducted several meetings with employees at which Har-
rison announced that he knew who the eight employees
were who attended the union meeting and knew the five
employees who had signed union cards. Harrison held aloft
a union card and read in part from a union pamphlet
which was distributed at the union meeting. There is also
credible testimony by Guy Powell, Warren Burdine, and
Standifer that Harrison stated that by signing union cards
they were signing away their right to deal with the Compa-
ny to a third party and that signing of a card would follow
them the rest of their lives whether or not the Union ever
came in. I credit the testimony of Gary Morgan that at that
same meeting Dewey Hannon, materials manager, stated
to employees that Harrison had put his neck on the line by
building inventory instead of having layoffs.
5. Employer meeting of April 11, 1977
Employee Standifer credibly testified that at this meeting
Harrison stated he was talking to those employees who
were pushing for the Union. He suggested that those em-
ployees should have the guts to talk to him directly about
their problems. Harrison further stated that there was
going to be a union meeting that night and he urged people
to go to get "both sides" of the story. In response to
Harrison's request about employees talking to him directly,
Gary Morgan stated he would like to meet with Harrison
at 3:30 p.m., at the close of the shift. He met thereafter
with Harrison and discussed alleged "favoritism" in the
plant involving the use of plant equipment by individuals
on nonworking time. According to the credited testimony
of Willis Burley, who attended this meeting (approximately
a week before the layoff) Harrison told employees not to
worry, that there would not be a layoff.
6. Union meeting of April 11, 1977
This meeting was attended by many of the employees
who attended the meeting of April 7, 1977. In attendance
again, inter alia, were Bob Fussell, Stewart Holliday, and
Gary Morgan. as well as some other employees who had
attended the initial meeting of April 7. Total employees
attending approximated I I to 13.
7. Employer meeting of April 13, 1977
At this meeting, Harrison announced he was very upset
because his wife had received some obscene phone calls a
day or two before, and he asked employees whether they
wanted to be represented by people like that. According to
essentially undisputed testimony of both employees and
Harrison. Harrison stated that if the Union wanted to play
dirty, he could play dirty too. In his testimony, Harrison
conceded that although he had no definite proof as to the
source of the abscene phone calls, the same type of thing
had occurred in a union organizational drive at a different
plant. Harrison credibly testified that his reference to his
playing dirty too referred to the fact that he had checked
with the telephone company about monitoring his phone in
efforts to pinpoint the perpetrator and prosecute him.
8. Miscellaneous testimony about unidentified meeting
dates
A number of employees credibly testified as to certain
events but could not recall at which specific meeting in
April they occurred. Gary Morgan credibly testified that at
one of the Employer meetings, Harrison said he thought he
knew who the ringleader of the Union was, but while he
would like to fire him, he couldn't touch him. Further,
Harrison told employees at one of these meetings that
Johnny Prince, the union organizer, was driving a foreign-
made car and announced his license plate number.
With reference to employer restrictions on union solici-
tation and distribution of union cards and literature, Gary
Morgan credibly testified as follows:
Q. (Counsel for the General Counsel) Do you recall
whether or not Mr. Harrison made a comment about
what you could have in the work area or could not
have in the work area?
A. (Morgan) Yes.
Q. What do you recall he said about that?
A. He told us that we could have our union cards,
and talk union, and our union pamphlets and things,
in the breakroom, at break, and at lunch, and at
break, and after work, but not to have the cards out in
the work area. He didn't want them interfering with
people trying to do their jobs.
Q. Do you recall if he said anything else about
that?
A. Yes. Just that this-that disciplinary action
would be taken if anybody was found with cards or
talking union out on the work floor.
9. The employer meetings of April 15, 1977
About 3 p.m., employees on the first shift were notified
of a meeting in the breakroom, where Plant Manager Har-
nson announced that he received a phone call from the
907
DECISIONS OF NA FIONAL LABOR RELATIONS BOARD
Company's office in Portland, Oregon, ordering a layoff
because of high inventories and that 10 men would be laid
off on the first shift and 5 men on the second. Harrison
turned the meeting over to Jennifer Cantrell, the assistant
industrial relations manager, who read off the names of the
employees who were laid off effective that day. Several
employees questioned whether those scheduled for layoff
were to work the overtime already assigned for Saturday,
the next day, and whether it was not inconsistent to be
scheduling overtime and laying people off simultaneously.
Employees were advised that the two were not related and
that those people laid off were not to work the overtime the
following day.
At approximately 3:30 p.m., the second-shift employees
were told the same thing, and Cantrell read off the names
of the second-shift employees laid off.
A number of employees credibly testified that they were
scheduled for 8 hours of overtime work on Saturday, April
16, 1977, and such overtime was confirmed on April 15, a
short time before the layoff was announced at an employee
meeting at 3:15 p.m.
B. The 8(a)(1) Allegations
Paragraphs 7, 8, and 9 allege that certain conduct by
Respondent's plant manager, T. J. Harrison, is violative of
Section 8(a)(I).
Paragraph 7 alleges that Mr. Harrison created the im-
pression of surveillance of employees' union activities and
that he warned employees that signing union cards was
signing away their rights and that the card would follow
them the rest of their lives.
There is credible testimony by employees Burdine,
Powell, and Standifer, and Mr. Harrison himself testified,
that in a meeting of employees held on April 8, 1977, the
morning after a union meeting, he stated that he knew who
attended the union meeting the night before and he knew
who had signed union authorization cards. Mr. Harrison
also conceded that he read alound certain portions of a
union pamphlet and that he held aloft a union authoriza-
tion card like those distributed at the union meeting. Testi-
mony is consistent that he told employees that by signing a
card they were signing away their rights to a third party
and that the card would follow them the rest of their lives.
On the basis of the above testimony, which I credit, I find
that Mr. Harrison created an impression of surveillance of
employees' union activities and thereby violated Section
8(aXl) of the Act.3 While I do not find anything improper
or unlawful about informing employees that by signing a
card they are turning over their rights to discuss working
conditions with management to a third party, I do find and
conclude that stating that a signed union authorization
card would follow them the rest of their life implied to
employees that such act would be detrimental to their fu-
ture jobs situations and, as such, constitutes a threat within
the meaning of Section 8(a)(X) of the Act.4
Paragraph 8 of the complaint alleges further 8(a)(1) vio-
lations by Plant Manager T. J. Harrison in that he threat-
3Joseph C. Asher d/b/a The Meat Cleaver, 200 NLRB 960, 963-964
(1972).
Blake, Moffitt A Towne, 214 NLRB 859 (1974).
ened and coerced employees in violation of Section 8(aXI)
by: (a) creating the impression of surveillance by telling
employees at an April 11, 1977, meeting that it was the
younger employees who were pushing the union and he
knew who they were; (b) threatening employees with disci-
plinary action for having union cards in their work area or
in their toolboxes; (c) soliciting prounion employees to
come to his office to discuss the problems they wanted the
Union to solve for them.
There was testimony by employees Burdine, Powell, and
Standifer, which I credit, that establishes that Harrison did
state in an April 11 meeting that it was the younger em-
ployees that were in favor of the Union and that those
employees should have the guts to come and discuss their
problems with him and that he, as well as they, knew who
they were.
With respect to (b) above, employee Morgan's testimony
cited previously, corroborated by that of Mr. Harrison,
simply established that employees were warned to keep au-
thorization cards and union material out of the work area
and toolboxes located there. They were advised, however,
that distribution of union cards and discussion of unions
could take place in the breakroom while on break or lunch-
time. I find nothing improper about the restrictions as to
union cards or solicitation, as it was clearly understood to
apply only to work areas and to toolboxes when located
there. Accordingly, I find no violation as to subparagraph
(b).5 However, as to subparagraphs (a) and (c), I do find
that Harrison's statement to employees that it was the
younger employees who were pushing the Union and his
solicitation of those employees to see him about their prob-
lems, with the comment that he and they knew who they
were, created an impression of surveillance and also consti-
tuted threats and coercion to the employees within the
meaning of Section 8(aX1) of the Act.
Paragraph 9 of the complaint alleged that T. J. Harrison
threatened and coerced employees at a meeting on April
13, 1977, warning employees with reference to the union
campaign that he could play dirty too, and questioned
whether employees wanted to be represented by someone
who made obscene phone calls. Harrison is also alleged to
have created an impresssion of surveillance by telling em-
ployees that he knew who the ringleader was but could not
touch him.
Harrison testified credibly that his wife had received a
number of obscene phone calls that disturbed him greatly;
that he called a meeting of employees on April 13, 1977, to
inform the employees about it, that he did in fact attribute
such phone calls to the Union; and that his reference to
playing dirty referred to his request to the phone company
to monitor his phone because of the obscene phone calls.
However, I credit the testimony of Warren Burdine, who
testified that Harrison stated at the meeting of April 13
that he knew the man that was responsible for this union
drive in this plant and, if he could, he would fire him, but
that he couldn't touch him. I conclude that the attribution
of obscene phone calls to the Union and the reference to
Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962); Essex Inter-
national, Inc, 211 NLRB 749 (1974). Cf Halliburton Company, 168 NLRB
1091 (1968).
908
DILLINGHAM MARINE AND MFG. CO.
playing dirty and whether employees wished to be repre-
sented by such people are not violative of the Act in the
circumstances related. However, the reference to knowing
who the man responsible for bringing in the Union and the
threat to fire him conveyed an impression of surveillance
which I find violative of Section 8(a)(1) of the Act.
Paragraph 10, subparagraph (a), alleged that Harrison
interrogated an employee concerning employees' union
membership, activities, and desires; that Harrison threat-
ened to demote an employee because of the employee's
union membership, activities, and desires; and that Harri-
son threatened employees by stating that it laid off em-
ployees because it lost money holding meetings about the
Union.
I credit employee Powell's testimony that in a meeting at
or near Harrison's home on April 16, 1977, Harrison in-
quired as to whether Powell knew who the main leader was
who was trying to get the Union in, and when Powell re-
plied "No," Harrison identified Bob Fussell as the one and
further stated that Fussell's job had been eliminated and
the only place that Fussell could go was to assembly or to
deburr operations. I further credit Powell's testimony that
Harrison stated that all of those meetings during the month
of April cost the Company around $12,000 and that they
could not make that money up without a layoff.6 In light of
Powell's credited testimony, I find that the allegations of
subparagraph (a)(i), (ii), and (iii) of paragraph 10 are fully
supported and that each of such actions constitutes a viola-
tion of Section 8(a)(1) of the Act.
Allegations as to Supervisors Dewey Hannon and Mickey
Hood
Employee Fussell credibly testified that in a long discus-
sion with Dewey Hannon at his home on April 14 Ham-
mon stated that if the Union came in, Harrison, the plant
manager, was not going to solve anything in the plant and
they were "going to have to take everything to arbitration."
The complaint, paragraph 10(b), alleged that Hannon
threatened an employee that Respondent would not re-
solve its employees' problems if they selected the Union.
Fussell and Hannon were old friends, and Hannon was
instrumental in getting Fussell to work for the Respondent.
In the approximately 2-hour conversation with Hannon,
Fussell unloaded various problems that he had at work
after being encouraged by Hannon to discuss those prob-
lems and see if they couldn't be worked out without "out-
side help." In view of the series of problems that Fussell
related at work that hadn't been resolved without a union
present, Hannon's comment did not appear coercive, but
simply an opinion regarding the plant manager's probable
approach to resolving problems after a union came in. Also
a factor is that Fussell stated that he had already signed a
union card and wasn't going to back off that position, but
was going to stick with it. While I recognize that the test of
coercion is whether a reasonable man under the circum-
stances would be coerced and not in fact whether he was
coerced, it is a factor to be considered. Moreover, such a
6 Cf. Pilot Fr, 'ht Carriers. Inc.. and BBR of Florida. Inc. 223 NiRB 286.
fn. I (1976).
view (by Hannon) was not attributed to any direct state-
ment by Harrison but simply represented Hannon's opin-
ion of Harrison's philosophy of operations. It is in any
event speculative as to whether any future contract would
provide for arbitration, and if it did either party would
have the contractual right to go to arbitration. Under all
the circumstances, I am not persuaded that a violation of
Section 8(a)(1) exists here and I shall recommend dismissal
of this allegation of the complaint. 7
Mickey Hood, a supervisor, is alleged to have interrogat-
ed an employee about his union and concerted activities on
or about May 2, 1977, at the plant. Guy Powell credibly
testified that after he had returned to work on or about
April 29, 1977, Hood approached him and said they (the
Respondent) had got a letter from the National Labor Re-
lations Board and asked him if he signed the letter on that
complaint. Powell responded that he knew nothing about
it. In view of the other 8(aXl) violations and the failure to
give any assurances against reprisals and as such question
was not necessary in preparation for litigation, I find such
interrogation violative of Section 8(a)(1).8
C. The 8(a)(3) Allegations
I. Paragraphs 11 and 12 of the amended complaint al-
lege that Respondent permanently laid off 15 named em-
ployees 9 and thereafter refused to reinstate them because
they joined or assisted the Union or engaged in concerted
activities. The names and dates of the layoff are no in dis-
pute, but the reason or underlying motivation for such lay-
off is in issue. The General Counsel contends that the lay-
off was prompted by the onset of union organizational
activities. The Respondent contends that high inventories
was the sole reason for their termination. It is clear that
Respondent's layoff was in accordance with seniority, and
with the possible exception of Fussell, as discussed sepa-
rately hereafter, there was no direct connection with indi-
viduals' union activities and their layoff. Thus, General
Counsel's allegation must be, in effect, that the layoff was
in retaliation for the union activities of employees in gener-
al and that but for the advent of the Union, no layoff
would have occurred. Whether all of the 15 employees
named engaged in union activities is not material if in fact
the layoff was prompted by union organizational attempts.
Respondent contends the layoff was a valid economic re-
duction in force, prompted solely by high inventories.
I have carefully reviewed the record, and for the reasons
noted and discussed hereinafter, I conclude the layoff was
prompted by the union activities of its employees and was,
therefore, violative of Section 8(a)(3) and (1) of the Act.
I reject the contention of counsel for the General Counsel that a viola-
tion of Sec. 8(ai( I) be found by Hannon's interrogation of Charles Harmon.
Apart froim ihe (ieneral ('ounsel's failure to amend the complaint in this
regard. he expressl) disclaimed that this testimony was being offered as
proof of a new vriolation
Hit ilan Garment Compaun. 184 NLRB 888. 890 91 (1970).
The 15 emplo)ees allegedly laid off or terminated on April 15, 1977. for
discriminatory reasons were: Warren D. Burdine. Billy Dobbs. Sammy El-
is. I uck Jones. Brad Powell. Tommy Irvin. Gary A. Morgan. Guy W.
Powell. Fred I)avls. Willie Randall. Harold Standifer. Fred Worthington.
Stere ( ulpepprr. Frank Gaddy. and Ollie Tucker
909
DECISIONS OF NA rlONAL LABOR RELATIONS BOARD
a. Assurances that there would be no layoff
Numerous employees credibly testified that T. J. Harri-
son on a number of occasions between December 1976 and
April 1977 specifically told employees not to worry, that
there would be no layoffs. In connection with this I note
that there had never been any layoffs in this plant prior to
the time and that in establishing the plant, the Respondent
had assured community leaders that they expected to have
steady employment for employees in the community.1°
Moreover, I note that at the April 7, 1977, employer meet-
ing before the advent of the Union, Harrison specifically
advised employees that sales goals set for March had been
reached and there would be no layoffs.
b. Respondent's profit-and-loss statement
Respondent's profit-and-loss statement (G.C. Exh. 61)
discloses that sales for its Amory, Miss., plant for MLrch
1977 were $381,173, a figure higher than had ever been
reached before. Testimony established that both Harrison
and Vice President Charles Martin were aware of sales fig-
ures approximately a week after the closing period. It was
conceded that those sales figures were available before the
layoff here was decided on April 14. Moreover, such ex-
hibit corroborates the credited testimony of employees
Standifer, Fussell, Morgan and others to the effect that
Harrison stated March was a good month for sales and
that there was little reason to fear a layoff.
c. Respondent's high inventory
There is little doubt that inventories had remained fairly
high at the Amory plant. However, a review of General
Counsel Exhibit 60, which disclosed dollar inventories for
every month back to January 1976, establishes that inven-
tory level for March 1977 was $2,090,783. It also discloses,
however, that inventories exceeded the $2-million level in 5
of the preceding 6 months. General Counsel Exhibit 73, a
memorandum from Chuck (Charles Martin, vice president)
at Portland, Oreg., to T. J. Harrison dated November 29,
1976, discusses the October 1976 inventory ($2,244,000),
which was higher than the March 1977 inventory, as fol-
lows:
8. We reviewed Amory's current inventory position,
which now stands at $2,244,000 in inventory. This is
up 47% during the last six months. Dewey Hannon,
you and I, have agreed that we will try to reduce these
inventories some amount each month over the next
twelve months. In order to minimize the effect on Per-
sonnel levels at Amory, we are in agreement that the
best way to reduce these inventories is to sell them,
based on above-budget sales levels. GO, DICK
COYNE!
I' Martin testified, "We had represented to the community, the financial
community-the business community, that we would provide stabilit) of
employment, something that it is my understanding was not necessarily
common in other industries, particularly in this area. It was important to
them because w were occupying a facility that was owned bv the communiot.
in terms of the building." (Emphasis supplied.)
The above facts give rise to the question of why invento-
ry became a momentous issue on April 14, 1977, 1 week
after the advent of the Union in Amory, when inventory
had been higher in October 1976 and no layoff was re-
quired.
Charles Martin, vice president of Respondent, whose of-
fice is located in Portland, Oreg., testified that he directed
that layoffs be made as a result of orders from Hobbs,
Respondent's president, to do something about the contin-
uing inventory problem. After discussing this problem with
Harrison on April 13, he and Harrison agreed to effect a
layoff of employees. Harrison corroborated Martin's testi-
mony that he was told to effect a layoff and that he in turn
directed Eddie Raymond, plant superintendent, Jennie
Cantrell, assistant industrial relations manager, and Dewey
Hannon, material manager, to determine what categories
of employees could be eliminated and the names of 14
employees to be laid off in light of seniority and bumping
rights. Harrison testified that he personally made the deci-
sion to eliminate the job classification of maintenance me-
chanic class B, a job classification held by Robert Fussell.
General Counsel Exhibit 54 is a copy of a memorandum
dated May 6, 1977, addressed to T. J. Harrison from Ernie
Brawley, Respondent's controller in Portland, which sets
forth the reasons inventory prompted the layoff. The mem-
orandum starts off stating: "I am writing this memo to
formalize our position in regard to the excess inventory
levels in the Amory plant." The fact that this memoran-
dum was written after the reduction in force and after for-
mtal charges were filed by the Union on April 27, 1977,
makes it a self-serving document at best. It does highlight
the fact that the Respondent has no written memos dis-
cussing such a momentous event as a layoff either prior to
or at the time of the layoffs, even though more sundry
items were discussed, I conclude that I can give little
weight to the memorandum of May 6, 1977, which was
compiled after the charges were filed in this case.
In addition to consideration of the demeanor of the wit-
nesses, I cannot credit the testimony of either Martin or
Harrison that it was the high inventory levels that prompt-
ed the abrupt layoff in light of the factors previously dis-
cussed." I am further prompted to discredit both Harrison
and Martin because they testified that a proper inventory
level for the Amory plant was approximately $1 million.
Yet a review of exhibit 60 discloses that since January
1976, inventories had never been below $1.5 million. It is
somewhat farfetched for Respondent's representatives to
1 In addition, in discussing the reasons prompting the layoff. Martin
testified as follows:
We had--I had felt that sales would increase and improve and outlets
[sic] would look better for increasing sales. Our sales had remained
relatively per budget and had remained stable.
Yet a review of sales figures (G.C. Exh 61) and other undisputed testi-
mmony in the record established that sales projections and actual sales for the
months of February and March 1977, the 2 months preceding the layoff.
were as follows: For February 1977 projected sales were $320.000, actual
sales. $327.721; for March 1977 projected sales were $320.000, actual sales.
$381 173
Thus actual sales in March 1977 were approximatel) 20 percent above
projections. Yet. at a later point in the record Martin acknowledged that
sales wcle higher during the latter part of 1976 and the first part of 1977.
910
DILLINGHAM MARINE AND MFG. CO.
now assert that $1 million is a proper inventory level in
light of the above figures.
d. Timing of the layoffs
I have previously noted that the timing of the layoffs was
suspicious in that the Union's first organizational meeting
was on April 7, 1977, and the layoffs occurred on April 15,
1977. Moreover, the immediate response to Plant Manager
Harrison to the union meeting the evening of April 7, 1977,
was to call several meetings on April 8 and announce that
he knew who attended the union meetings and who had
signed cards. Such immediate reaction is indicative of the
depth of feeling that Harrison had about the Union,
prompted no doubt by the fact that it reflected on his run-
ning of the plant and that the union activity was a personal
betrayal and evidenced a lack of loyalty to him personally
and the Respondent in general.
e. Strike at Respondent's Porlland plant
It was stipulated in the record that Respondent's other
valve plant was on strike from April 5, 1977, to April 28, at
the time of the decision to lay off the 15 employees at Amo-
ry. While the two plants do not make the identical product,
Harrison testified that shortly after the layoffs, approxi-
mately April 20, Martin called him and asked that the
Amory plant ship as many finished products as possible in
order to improve the Respondent's profit picture for the
year and to make up for the slack caused by the strike at
the other plant. It should also be noted that several unions
represented employees at the Portland, Oreg. plant, where
the strike was occurring.'2 Moreover, the inventory justify-
ing memo dated May 6, 1977, talked in terms of inventory
sent to Amory from the Portland, Oreg. plant. Because of
the overtime run up at the Amory plant subsequent to the
April 15 layoffs, discussed at more length hereafter, it is
clear that the layoffs were running counter to what Re-
spondent wanted, namely, more production and more ship-
ments from the Amory plant to offset the lack of produc-
tion and profits at the Portland, Oreg. plant. Moreover, it is
axiomatic that it is not a good business practice to lay off
and pay the remaining work force at more expensive over-
time wage rates. If Respondent was concerned at its profit
picture, laying off 15 employees and working the remain-
der at overtime was not calculated to increase profits.
f. Overtime work for the period April 3-29
(G.C. Exh. 59)
A review of General Counsel Exhibit 59 discloses that
for the I-day period ending April 15, 1977, the day of the
layoff, overtime for 8 days for the entire plant averaged
between 3 and 5 hours daily and the highest amount of
2 With respect to Respondent's experience with unions at its unionized
valve plant in Portland, Martin testified as follows:
Q. Did your stnke at your Portland, Oregon, plant have any effect
on your production at Amory?
A. (Martin) It did in the latter part of April. . We had had previ-
ous work -toppages the last four contract expirations and there was
very little sentiment for another one.
overtime for any day during that period was 19 hours. On
April 16, 1977, a day after the layoff and a Saturday, there
were 80 overtime hours recorded. The following Saturday,
April 23, 1977, there were 254 hours of overtime recorded.
In the period from April 16 through April 29, daily over-
time ran between a low of 18 hours to a high of 254 hours.
In sum, in the 2 weeks after the layoff the plant moved
heavily into overtime work.
Plant Manager Harrison testified that the layoffs were
not the cause of the overtime and that certain rush orders
had to be filled and that the categories of employees laid
off would not have been utilized. Yet the reduction in force
was, in many instances, an across-the-board reduction.
There were, for example, layoffs from the deburropera-
tions, from assembly and test, from the classification of
fitter-welder, from MIG welder, from engine lathe, and
from radial drill. While it is possible that some of the em-
ployees laid off were not needed to complete these orders,
I am not persuaded that such a great increase in overtime
was not prompted, at least in part, by the layoff. Accord-
ingly, to the extent that Harrison testified that the overtime
had nothing to do with the layoffs, I do not credit him.l
g. Weekly activity report from T. J. Harrison dated April
13, 1977
In his weekly report to his boss, Charles Martin, located
at the Portland, Oreg. location, T. J. Harrison, 2 days be-
fore the layoff and the day before the reported decision to
lay off, made the following comment on union activities at
his plant. Item 7 of his report states:
7. Strongest effort to date is now underway to orga-
nize the Amory plant. IAM (International Association
of Machinists and Aerospace Workers) is spear head-
ing the campaign and True Temper's Steel Worker's
Union Local #7477 is cooperating every way possible.
We feel this drive was instigated by PDX affiliated
International Union group. A Mr. John Prince. im-
ported organizer. is in town directing the union activi-
ty. He brought with him copies of Portland's contract
(Metal Trades and Maritime), Cal Gas contracts and
possibly some others. We feel we have the tide turned
in our favor. We realize organizing attempts will be a
never ending thing and we must work everyday to pro-
tect our good employee-employer relationship. Mrs.
T. J. Harrison has started getting obscene phone calls,
4- 11-77. Phone company has been contacted and plan
to have monitoring equipment attached to home
phone to track down individual. We feel this is union
inspired but at this time have no proof.
Three things are of note with respect to this report. First,
there was a fairly comprehensive report on the union activ-
ities and what the organizer utilized or displayed at meet-
1 Harrison testified about the overtime in the 2 weeks after the layoff as
follows
Then we had some 158 hours that was involved in our assembly and
test department to get that material assembled and tested and shipped.
and then. I believe 140 hours In our dehurr department
Yet. Fussell was terminated from dehurr on April 19, 1977, and was not
replaced
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings. Second, no comment was made with respect to high
inventory or the possible layoff of employees on April 13, 2
days before the actual layoff occurred. Third, this report
was transmitted directly to Martin (via Magnifax) 14 the
day it was written, namely, April 13.
I note in this regard that both Hobbs and Martin were
aware of the union activities prior to the layoffs in ques-
tion. Hobbs testified that he stopped in the Amory office
on April 8 to see Harrison before his departure and, when
asked if he knew there had been a union meeting the night
before, conceded that he "probably heard there had been."
Martin appeared to give contradictory testimony about his
knowledge of union activities prior to the layoff. At page
1082 of the record, Martin stated at one point: "In talking
to Mr. Harrison on the 13th, he told me that there was, yes,
some very-some definite Union activity going on, but
.... I was aware of it." Martin, however, denied that the
Union played any part in his decision for layoffs and testi-
fied that he "didn't know of any specific union acitvity" in
his deliberations about a possible layoff prior to April 13.
According to Martin, he informed Harrison on April 13
that there would have to be a layoff but that in effect he
made that determination prior to learning about the specif-
ic union activity and prior to communicating to Harrison
on April 13 that there would be a layoff. I cannot credit
Martin in this regard in view of the April 13 memo from
Harrison regarding union activity, nor can I believe that
sitting in his office in Portland, Oreg., Martin would make
the decision to lay off without consulting on that decision
with the plant manager in Amory, Mississippi. Moreover,
Harrison testified that when he talked to Martin on April
14, it was concluded that a layoff was necessary to effect
an inventory reduction. In not crediting Martin in this re-
spect, I take into consideration the somewhat contradic-
tory testimony he gave with respect to sales in the first
quarter, noted previously in the discussion about invento-
ry.
h. Testimony of Guy Powell
Powell credibly testified that he went to Harrison's home
on April 16, 1977, the day after the layoff, and had a dis-
cussion with Harrison as follows:
Q. Do you recall how the conversation started?
A. [Powell] Mr. Harrison was working on his gar-
den tiller and I drove up and me and him shook
hands, and he said he hated to hear about the layoff
and I said I hated to hear about it too.
And we talked around there and something come
up about the union and he said, "that union is the
biggest cause of this layoff." And he said the heck of it
was, he said, the ones, most of them that got laid off
was innocent, and some of them-some that was still
working there was the main ones that was trying to get
the union in there.
And he asked me did I know the one that was trying
to-the main leader on trying to get the union in
there, and I said, "No, who?" and he said "Mr. Bob
14 A machine that transmits copies of documents over a telephone line.
Fussell," he was the one. And he said Mr. Bob
Fussell's job had been eliminated, and the only place
Mr. Fussell could go was over in Assembly, on the
valve tester, testing valves, or over in Deburr, debur-
ring valves.
I am fully cognizant that, under normal circumstances,
management has the legitimate right to reduce its work
force whether because of high inventories or because other
legitimate managerial prerogatives, provided that such lay-
off is not motivated by employees' union activities or pro-
tected concerted activities. Consequently, I have given full
consideration to Respondent's defense of "high invento-
ries." All of the factors previously discussed persuade me
that such defense in this context was not the motivating
cause of the discharges.
I conclude that the mass layoff was prompted by the
union organizational activity. In so concluding, I note that
the inventory problem had existed since October 1976; that
the layoffs occurred 8 days after the initial union organiza-
tional meeting; that T. J. Harrison immediately called a
meeting the day following the first union meeting and indi-
cated a strong emotional reaction to the union activities;
that numerous employees credibly testified that Harrison
assured employees that there would be no layoffs and par-
ticularly so on April 7, 1977, before the advent of the
Union; that March 1977 sales figures for the Amory plant
where the largest in its history; that although a strike was
occurring at its Portland, Oregon, plant, Respondent chose
to make a substantial reduction in force at its Amory
plant; and that overtime was unusually high at the Amory
plant in the 2 weeks following the layoff; lastly, I was im-
pressed by the credible testimony of Powell that Harrison
stated that the Union was the biggest cause of the layoff.
2. Subparagraphs (a) and (b) of paragraph 13 of the
amended complaint allege that Respondent was discrimi-
natorily motivated in eliminating the job classification of
R. C. Fussell and demoting him on or about April 15 and
by terminating him on April 19, 1977. Other subparagraphs
deal with demotions and transfers (bumping rights) stem-
ming from the layoffs of 15 men on April 15 and the con-
structive termination of employees J. Horne and Charles T.
Harmon. Each of these allegations will be treated ad seria-
tim.
i. The alleged discriminatory demotion and termination of
R. C. Fussell
Based on Harrison's own testimony that he personally
had made the decision to eliminate the classification of
R. C. Fussell, the maintenance mechanic, and the credited
testimony of Powell that Harrison stated Fussell was the
main leader in trying to get the Union in there, I conclude
that the elimination of Fussell's classification was not eco-
nomically motivated but was the first step in Respondent's
efforts to rid itself of a strong union advocate. The only
other maintenance person was the maintenance "working"
foreman, Herbert Parham. While a janitress did work half
a day and was under the direction of Parham, that was
simply cleanup work and did not involve any skilled main-
tenance. I note, moreover, that while Harrison relegated to
912
DILLINGHAM MARINE AND MFG. CO.
his production manager, Eddie Raymond. to assistant in-
dustrial relations manger, Jenny Cantrell, and to Dewey
Hannon, his materials manager, the determination of what
classifications could be eliminated, he personally made the
decision to eliminate Fussell's classification.
I credit Fussell's testimony that he was visited at his
home about 10 a.m. by Dewey Hannon during working
hours on April 14, 1977, and asked to unload his problems
to see if they couldn't be resolved without going to some-
one "outside." I have credited Fussell's version of the con-
versation because it belies belief that Hannon would travel
several miles during the workday to visit Fussell at home to
discuss Fussell's problems with a supervisor as stated by
Hannon. As Hannon was instrumental in hiring Fussell, he
apparently made a special effort to see if Fussell could be
persuaded to abandon his support of the Union and talk to
Harrison directly about his problems. The following day,
15 layoffs were made and Fussell, because of his seniority,
was permitted to bump down into a lower paying job as a
deburr operator. Accordingly, I conclude that the selection
of Fussell's classification as one to be eliminated and his
subsequent demotion to deburr operator was violative of
Section 8(aX3) and (1) of the Act. 5
Fussell was subsequently terminated on April 19, after
working I day as a deburr operator. When he reported to
work on Monday, April 18, he was assigned to deburr op-
erations, where valves were ground down to remove rough
spots, such as burrs and welds. Although given the option
of working either in test and assembly or in deburr, Fussell
chose deburr. He was taken to a workstand and shown a
number of valves he was to work on. He was not given any
special instructions on how to operate the grinder, but as a
maintenance man he had repaired and tested grinders and
was familiar with their general operation. Fussell credibly
testified that he worked some 2 hours on a 24-inch valve
and was told thereafter to keep working on smaller valves
located in a basket near his work station. While working,
Fussell consulted as to his progress on the large valve with
Supervisor Jerry Parrish, who advised him whether the
valve needed further grinding. Fussell estimated that he
worked on approximately 10 valves during the day. The
following morning he resumed work in deburr, and about
9:30 a.m. Parrish approached him and asked him to come
look at some valves. He took him to another portion of the
plant where five valves were lying on a pallet and was ad-
vised that the valves were improperly done because in the
grinding process the metal faces of the valves had been
gouged or trenched. Fussell credibly testified that he had
15 In so concluding. I note that Harrison testified that in 1976 tv,o class C
maintenance mechanics had been eliminated, leaving Ihe maintenance de-
partment a two-man unit composed of maintenance foreman Parham and
Fussell. After the reduction in force, there were approximately 46 employees
and one maintenance man. Harrison testified that the 'working" foremen
assumed part of the maintenance load after the maintenance X partment
was reduced to Parham. Since Raymond was in a better position to judge
the maintenance workload because he was the production superintendent in
the plant, Harrison's decision to eliminate Fussell's job was. I find. discrimi-
natorily motivated. In so concluding, I have given consideration and weight
to the testimony of Powell that Harrison identified Fussell as the "main
leader of the union activity and Burdine's credited testimony that at a meet-
ing in April. Hai -ison stated that he knew who the union ringleader was and
would like to fire him but could not.
streaked one like that, the day before. Parrish told Fussell
that Eddie Raymond, the plant superintendent, wished to
see him in the office. Thereafter, Fussell went to the office
of Jenny Cantrell, industrial relations manger, along with
Parrish, where Raymond asked whether he had seen the
valves. Fussell responded "Yes." Raymond noted that Fus-
sell was supposed to be qualified for the job in deburr that
he had bumped into and that he was going to have to ask
him to take a layoff. On the stand Fussell admitted to
streaking or gouging one valve but credibly denied that he
had done the others. It is not clear whether Fussell under-
stood he was being laid off because he had allegedly de-
faced five valves, and unquestionably it appears strange
that at his dismissal interview Fussell apparently did not
deny that he had done the work. However. his demeanor
throughout appeared credible., 6 and in partial explanation
Fussell stated that he figured if they wanted to lay him off
there was nothing he could do about it. He also stated that
he did not appeal to Harrison. the plant manager, because
he was afraid that he would lose his temper and that might
be held against him.
Fussell, in elaboration of his I day of work in deburr,
stated that he was merely told to grind the burrs and welds
off the valves and was not given any instruction on how to
perform the job. In one instance, when he was getting some
instruction from Crawford, a fellow employee, Parrish, the
machine shop foreman, sent the employee back to his own
booth. In addition, Fussell's testimony is undisputed and
credited that the paperwork on the valves he did was filled
out by Parrish. a supervisor.
In defending the discharge of Fussell, Respondent con-
tends that the valves which were defaced was the lot num-
ber done by Fussell and that other employees who debur-
red valves that day stamped their work so it could be
identified. The particular valves in question were not
stamped and, thus Respondent reasons, must have been
Fussell's who had not yet received a stamp. Respondent
also stressed that when an employee bumps into another
job, he is supposed to be able to properly perform the work
and that since this was the first layoff from the plant, it
would set bad precedent if they permitted an employee
who had bumped to remain on the job after demonstrating
inability to do the job. Respondent does not dispute that
Fussell was not given any instruction on his new job or that
it discharged him without any warning or reprimand and
after only I day on the job. Harrison conceded that to his
knowledge that was the first time that anyone had been
discharged from the deburr operation.
The General Counsel introduced into the record written
records of reprimands repeatedly issued to employees Lit-
tle, Fred Davis, Powell, Horne. and Steve Culpepper 7 or
put in their personnel files, dealing with their work perfor-
mance or negligence in working on certain materials. How-
I{ Moreover. when asked to identilf a paper authorizing his transfer to
deburr given by the CoompanS. Fussell responded:
Q Do Ioti remember who showed it to you?
A No. sir. I dsn't.
Q Do you remember If the' showed it to ,ou at Ihe plant'?
A I'm under oath. and I couldn't say when I got it I lust don't
remember it
(i (. I-h h16(h 22
913
DECISIONS OF NAI1ONAL LABOR RELATIONS BOARD
ever, none of these employees were terminated. Raymond
testified that if another employee had performed the same
work, he might have been warned or reprimanded instead
of terminated, the distinction apparently being that anoth-
er employee would be given additional time to adjust to the
new job but that an employee that bumps must be fully
qualified ab initio.
I find that Fussell was terminated for discriminatory rea-
sons. In the first instance, I credit Fussell that he did not
streak, gouge, or deface the five valves that he was charged
with and that the defaced valves were utilized to justify his
discharge.' Second, however, even were I to assume that
Fussell did in fact deface the valves he was charged with, I
conclude that Respondent seized the opportunity to dis-
charge him because of his union activities and support. In
doing so, I note first that little or no instruction was given
to Fussell when he reported on the deburr job. Second, the
paperwork, i.e., the lot numbers which were relied on to
pinpoint the defaced valves, was filled out by the machine
shop foreman, Parrish. Third, Respondent had never fired
anyone previously for defacing valves and there is testi-
mony in the record that other employees had defaced
valves and, apart from group or oral reprimands, no writ-
ten reprimands or terminations were ever made for such
mistakes. Fourth, Respondent failed to permit Fussell to
adjust to the new job rather than firing him after only 1
day on the job. There was testimony in the record that
these particular valves were not available because they had
been reworked and utilized to fill orders. It is apparent,
therefore. that there was no large dollar damage as a result
of the defacing of the valves for the bad work done but
merely the additional labor cost to rework the valves. The
job in deburr was mentioned by Raymond as the least
skilled job in the plant. I Also note that Eddie Raymond,
the plant superintendent, cleared with Harrison the termi-
nation of Fussell before it was carried out. This factor
strikes me as a little unusual unless it had been made
known to Raymond and other supervisors that Fussell
should be discharged whenever an appropriate opportunity
presented itself.
When questioned about other discharges from the de-
burr operation, Hannon, formerly the industrial relations
manger and holding the post of material manager more
recently, testified that no one had ever been discharged
from the deburr operation for bad work before. Last, there
is testimony by Eddie Raymond, production superinten-
dent, that because Fussell had bumped into the job, he was
treated differently than an employee who would have
worked there for 2 or 3 years. The specific testimony on
this point follows:
It Fussell testified about his first day's work in deburr as follows:
I just I kept working on these valves and grinding on them, doing the
best I could. Ever once in a while, I'd go get him [Parrishl to see what
needed to be done, and he'd just come back and say, "Grind some
more there," and that's all he'd tell me.
It seems inconsistent if not incredible that subject to such close supervi-
sion on his first day on the job. Parrish or Pierce. his supervisors that da5 .
did not note one gouging or trenching of salves and order him to redo them
Yet the followi - morning, five valves were discovered badly defaced and
attributed to Fussell
Q. In other words, if Mr. Fussell had been working
in deburr two or three years, no bumping involved,
just working there, would the situation have been the
same? Would you have taken the same action?
A. (Mr. Raymond) No, sir, I would not have taken
the same action, from the standpoint that Mr. Fussell
would have been disciplined. But this is a precedent-
setting thing in the fact that the man bumped-bumped
into this particular job.
Now I would say this, had an employee gouged as
many valves, that employee would have been disci-
plined to the point to where at least the next time he
would have been discharged.
Mr. Raymond further testified that Fussell's layoff was
in accord with the rules in the employees' handbook which
permitted displacement of employees with less seniority by
employees with more, "provided they have the ability with-
out additional training" to do the job.
It strikes me as clearly disparate treatment when an em-
ployee with 2 years or more of experience in the deburr
operation who did similar bad work would receive a warn-
ing, whereas an employee who bumps into the job is imme-
diately discharged after I day. Nor is it explained any-
where why Fussell, if considered as lacking ability to do
the deburr operation, was not asked or permitted to go to
the test and assembly area, the other place in the plant that
he was considered qualified to go to. Nothing was cited to
me to indicate that bumping was limited to a one-time
affair. The failure to ever discharge an employee for similar
bad work and the alacrity with which Fussell's bad work
was seized upon as a basis for discharge persuades me that
but for his known support of the Union, Fussell would not
have been terminated. Accordingly, I find that Fussell's
termination on April 19, 1977, was discriminatorily moti-
vated and violative of Section 8(a)(3) and (1) of the Act.
j. Allegations concerning Harmon, Horne, Smith, and
Burley
Subparagraphs (c) and (d), respectively, of paragraph 13
of the complaint involve allegations that on April 18, 1977,
Charles Harmon was discriminatorily transferred from the
day shift to the night shift and that on Apnl 18, 1977,
Respondent discriminatorily demoted employees J. Horne,
Herbert Smith, and Willis Burley.
Both of the above allegations are dependent on the find-
ings with respect to the layoff of 15 employees on April 15,
since, as a result of that layoff, the employees with more
seniority had the option to bump less senior employees in
lower paying jobs or were required to transfer to another
shift to retain employment. In view of my earlier finding
that the layoff of 15 employees on April 15 was discrimina-
torily motivated, it necessarily follows that any transfers or
demotions that were triggered by the layoffs would also be
tainted with illegality. Accordingly, I find that the transfer
of Charles Harmon and the demotions that occurred as a
result of employees Horne, Smith, and Burley exercising
their bumping rights were also discriminatory and violative
of Section 8(a)(3) and (1) of the Act.
914
DILLINGHAM MARINE AND MFG. CO.
Paragraph 13 of the complaint contains further allega-
tions that employee J. Horne was constructively terminat-
ed on April 29, 1977, and that employee Charles Harmon
was constructively terminated on September 13, 1977. For
the reasons noted hereafter, I find such allegations unsup-
ported and recommend their dismissal.
Home, originally a fitter-welder, testified that he had
made a job application at True Temper, another company
in Amory, on April 14, 1977, the day before the layoff. He
acknowledged that when he made application he did so
because he was unsure of his job at Fabri-Valve but was
unaware of the layoff until it was announced on April 15.
On Thursday, approximately 2 weeks after the layoff,
Home was called by the personnel manager of True Tem-
per and offered a job. The next day he informed his super-
visor, Mickey Hood, that he was leaving to take a job at
True Temper, and shortly thereafter, at about 10 a.m., his
tools were checked out and he left the job. On cross-exami-
nation he admitted that the job at True Temper paid more
than his current job in test and assembly and more than his
prior job as fitter-welder. On the basis of his own testi-
mony, it is clearly established that he voluntarily terminat-
ed his employment on or about April 29, 1977, to accept a
better position at True Temper.
As to Charles Harmon's alleged constructive termina-
tion, Harmon credibly testified that he decided to accept a
job in the parts department at the Scribner Equipment
Company in Amory on or about September 13, 1977, be-
cause he did not want to continue working on the night
shift, primarily due to the objection of his wife. He further
credibly testified that his new job at Scribner paid about $8
a week less and also had less favorable fringe benefits. He
had previously worked at Scribner for 4 years, and they
contacted him and asked him if he would like to return
there. He told them what pay he would have to have, and
they agreed to meet his request. Harmon also testified that
on the night of April 18, right after the layoff, he visited
Eddie Raymond, plant superintendent, and asked if he
would permit him to swap with Mr. Horne, who was still
on the first shift. The following day Raymond advised him
that he could swap shifts with Mr. Horne, but Harmon
decided not to accept the offer because it involved a cut in
pay from $4.11 to $3.46 and because he had decided to
help his father-in-law work his milk route, which would
have interfered with his working the day shift. Harmon
also indicated that on the basis of what some employees
told him, he was under the impression that employees
would be returned to their regular shifts in approximately 2
weeks. On or about September 7, 1977, Harmon again
asked Raymond if he was going to put him back on days
and Raymond told him "No." The essence of the construc-
tive termination, therefore, is that he left because he was
not able to return to the day shift. However, he had reject-
ed an offer to return to the day shift earlier and had actual-
ly worked on the 3:30-to-midnight shift from April 18 until
September 13 or 14, 1977. His primary motivation for leav-
ing was that he preferred the day shift because he was tired
of working nights and his wife didn't want to be left alone
at night with the children. I do not conclude that the job
was made so onerous as to force him to leave it. While his
reasons for wanting to return to the day shift are under-
standable. they do not amount to such onerous conditions
as to warrant my finding that he was constructively dis-
charged. Accordingly, I shall recommend dismissal of the
allegations of constructive discharges with respect to both
J. Horne and Charles T. (Tommy) Harmon.
Upon the foregoing findings of fact and the entire rec-
ord, I make the following:
CONCLUSIONS OF LAW
I. By permanently laying off and/or terminating 15 em-
ployees on April 15, 1977, because of union organizational
campaign, Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(3) and (I) of
the Act.
2. By eliminating the classification of maintenance me-
chanic, resulting in the demotion of R. J. Fussell to a job
in deburr operations on April 18, 1977, and by terminating
him on April 19, 1977, because of his views and activities
on behalf of the Union, Respondent, through T. J. Harn-
son and other supervisors, engaged in unfair labor prac-
tices in violation of Section 8(a)(3) and (1) of the Act.
3. By transferring Charles Harmon from the day shift to
the night shift and by demoting employees J. Horner, Her-
bert Smith, and Willis Burley by requiring them to exercise
bumping privileges to lower paying jobs, all of which oc-
curred as a direct result of the discriminatory terminations
of April 15, 1977, Respondent, by its agents and supervis-
ors, has engaged in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act.
4. By informing employees that he knew who attended
the union meeting of April 7, 1977, and who signed cards;
by warning employees that signing a union card would fol-
low them the rest of their life: by stating to employees that
it was the younger employees who were pushing the Union,
and he knew who they were; by soliciting employees who
were pushing the Union to see him about their problems;
by stating that he knew the man who was responsible for
this union drive; by stating that those Company meetings
cost $12,000, and they couldn't make up that money with-
out a layoff; by interrogating an employee and by threat-
ening to demote an employee because of their union views
and activities, Respondent:, by T. J. Harrison and other
supervisors, has by each of the above actions engaged in
unfair labor practices violative of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not constructively terminate either J.
Horne on or about April 29, 1977, or Charles T. Harmon
on or about September 13, 1977, and therefore did not
engaged in unfair labor practices within the meaning of the
Act.
7. Except as found herein, the Respondent has not
otherwise violated the Act.
THE REMEDY
The recommended Order will contain the usual cease-
and-desist provisions and require the Respondent to rein-
state and pay backpay to 16 employees for any loss of
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnings they may have suffered and require Respondent
to post appropriate notices. Reinstatement shall be to the
employees' former positions or to substantially equivalent
positions. Those employees who were terminated shail be
made whole for any loss of earnings by paymnet to them of
a sum of money equal to that which they normally would
have earned from the date of the discrimination to the date
they were offered reinstatement by Respondent, less net
earnings, if any, during such period, and shall include in-
terest thereon to be computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).'9
In the case of those employees bumped to lower paying
jobs, they shall be paid the differential between their for-
mer job and the job to which they bumped. Two employ-
ees, Gaddy and Powell, were recalled after several weeks.
They shall be entitled to backpay until recalled and the
wage differential, if any, they may be entitled to between
the job they were recalled to and their former job.
I make no findings as to whether or not a valid reduction
in force may have been warranted at some point in time
subsequent to the April 15, 1977, layoffs. Such issue is not
before me, and Respondent has made no such alternative
contention. I would note, however, that on or about April
29, 1977, the Respondent recalled two employees due to
the departure of J. Horne and the termination of R. C.
Fussell and that no new employees have been hired since
August 1976 and that Respondent lost five employees
through attrition from August 1976 until the layoffs in
April 1977. Moreover, Martin testified that a $50,000
monthly reduction in inventory was their target. Yet inven-
tory at the end of April was $1,855,008.47, a reduction of
$236,000 for April alone even though the layoff did not
occur until April 15, 1978.
The amounts of backpay due and any other matter nec-
essary to effectuate the terms of this recommended Order
can be resolved in regular compliance proceedings.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended.
ORDER 20
The Respondent, Dillinhgam Marine and Manufactur-
ing Co., Fabri-Valve Division, Amory, Mississippi, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Permanently laying off, terminating, or transferring
employees or eliminating job classifications because of em-
ployees' membership in, support for, or activities on behalf
of the International Association of Machinists and Aero-
space Workers, AFL-CIO, or any other labor organiza-
tion.
(b) Creating an impression of surveillance by informing
See, generally, Isis Plumbing & Healing