DuBois Chemicals, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1962

140 N.L.R.B. 103 (N.L.R.B. 1962)

DU BOIS CHEMICALS , INC. 103
We do not agree that the cases are distinguishable . In reality, our
colleagues are here overruling the Lobue principle without saying so.
Here, as in Lobue , the offer of waiver of initiation fees was made as
part of a preelection campaign . In both cases , the waiver applied
without regard to how any individual employee voted in the election.
In Lobuc , no less than here, although some employees there signed
membership cards , the employees could have voted as they pleased in
the election . And, as in Lobue , the Petitioner in effect told the em-
ployees that they would save the price of the initiation fee if the
Union won the election . It is therefore clear that in this case and in
the Lobue case the quid pro quo was the same in that the waiver of
initiation fees was dependent upon how the employees voted in the
election or on the results of the election . The proffered waiver thus
constituted a clear promise of benefit calculated to induce employees
to vote for union representation and tended to interfere with the free
choice of the employees.
Under the circumstances, in agreement with the Regional Director,
we would set aside the election.
DuBois Chemicals, Inc. and United Packinghouse , Food & Allied
Workers, AFL-CIO, Local 398. Case No. 16-CA-1550. Decem-
ber 13, 196
DECISION AND ORDER
On July 2, 1962, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report, a brief and a, supplemental brief in support of its ex-
ceptions, and a request for oral argument
Pursuant to the provision of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
i As the record, including the exceptions and briefs, adequately sets forth the issues
and the positions of the parties, the request is hereby denied.
140 NLRB No. 29.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations of the Trial Examiner, with the following additions
and modifications.
The Trial Examiner found, inter alia, that the Respondent's layoff
of seven production employees on September 22, 1961, violated Sec-
tion 8(a) (3) and (1) of the Act. The Respondent contends, however,
that the layoffs were based on economic considerations. In this regard,
it points, inter alia, to the facts that for a period of some 2 months Pal-
mer, branch manager of the plant here involved, had been under pres-
sure from his superiors to reduce his work force; that Palmer and his
subordinates had discussed making certain layoffs and had decided
several days before September 22 to reduce the day shift by seven or
eight employees; and that on September 21 it was decided to eliminate
the night shift of three employees. We note, however, that the Re-
spondent did not notify any employees of an impending layoff; and
did not in fact select which employees it intended to lay off until after
some 16 of its approximately 21 production and maintenance em-
ployees appeared at work on September 22 wearing union buttons,
and until after the Union had made its demand for recognition on that
date. The celerity with which Respondent acted upon the advent of
the Union with respect to the foregoing matters, in contrast to its prior
failures to act thereon, cannot be ascribed to mere coincidence, espe-
cially in view of Respondent's proclivity for unlawful, antiunion con-
duct, as described in the Intermediate Report. The appearance of the
Union clearly was the factor that occasioned the discharges. Conse-
quently we find, for the reasons set forth by the Trial Examiner and in
view of the foregoing, that the discharge of the employees on Septem-
ber 22 was discriminatory and motivated in whole or in part by the
Respondents' desire to interfere with, coerce, and restrain the em-
ployees in the exercise of their lawful union activities and, thus,
violated Section 8 (a) (3) and (1) of the Act.'
THE REMEDY
Although properly finding that the Respondent unlawfully dis-
charged 7 employees, as noted above, on September 22, 1961, and some
10 strikers on September 25, the Trial Examiner did not recommend
reinstatement for such employees because the Respondent, on Decem-
ber 12,1961, had been ordered by a district court of the United States 9
to reinstate all employees employed on September 22. The Trial
Examiner also did not recommend backpay for the strikers discharged
on September 25 because they had not, before the district court order,
unconditionally requested reinstatement. The General Counsel ex-
cepted to the Trial Examiner's failure to recommend the usual rein-
a See , e g , N L.R B. v Great Eastern Color Lithographic Corp., 309 F 2d 352 (C A 2) ;
N L R B v Jamestown Sterling Corp , 211 F 2d 725 , 726 (C A 2) ; and Julius Corn,
et at , d/b/a Julvus Corn and Co, 129 NLRB 1264
3 201 F. Supp. 1
DUBOIS CHEMICALS, INC. 105
statement and backpay order. We find merit in the exception, for
under the Act it is the responsibility of this Board to provide a full
and adequate remedy to redress the commission of unfair labor prac-
tices. To be sure, the matters which the Trial Examiner took into
account in framing his recommended order may well affect what
actions the Respondent must take in order to undo the effects of its
own wrongdoing. But they are also matters that can most effectively
be dealt with at the compliance stage of this proceeding. We shall,
therefore, order the Respondent to offer to its employees unlawfully
discharged on September 22, 1961, and, upon application, to those
strikers unlawfully discharged on September 25, 1961, immediate
and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, dismissing, if necessary, any employees hired after September 22,
1961, to replace the discriminatees. If, after the dismissal of the re-
placement employees, there are not enough positions available for all
the workers entitled to reinstatement, available positions shall be
distributed among them, without discrimination because of their union
membership, activity, or participation in the strike, on the basis of a
seniority system, or any other nondiscriminatory practice with respect
to work assignments previously followed by the Respondent in the
conduct of its business. The employees for whom no work may be
immediately available, after such distribution, shall be placed on a
preferential hiring list, with priorities determined on the basis of the
seniority system or other nondiscriminatory system previously fol-
lowed by the Respondent in the conduct of its business. They shall
be offered reinstatement thereafter in accordance with such a list as
positions become available and before other persons are hired for work.
Reinstatement, as ordered herein, shall be effectuated without preju-
dice to the seniority of the employees or any of their other rights and
privileges. We shall also, in addition to the backpay order recom-
mended by the Trial Examiner order the Respondent to reimburse the
striking employees discharged on September 25, 1961, for any loss
of pay they may have suffered by reason of the Respondent's discrimi-
nation with respect to them, by payment to each of them of a sum of
money equal to that which he would normally have earned as wages
during the period from 5 days after the date of his unconditional
offer to return to work to the date of the offer of reinstatement, less net
earnings during that period. Such backpay shall be computed on a
quarterly basis as provided in F. W. Woolworth Company.4 Interest
at the rate of 6 percent per annum shall be added to backpay to be com-
puted in the manner set forth in Isis Plumbing and Heating Co.'
4 90 NLRB 289.
5138 NLRB 716 Member Leedom dissents from the inclusion of interest on Respond-
ent's backpay obligations for the reasons in the dissent in the Isis Plumbing case.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, DuBois Chemi-
cals, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Interrogating any employee concerning their membership in,
or activities on behalf of, United Packinghouse, Food & Allied Work-
ers, AFL-CIO, Local 398, or any other labor organization, in a man-
ner violating Section 8 (a) (1) of the Act.
(b) Threatening employees in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
(c) Discouraging membership in United Packinghouse, Food &
Allied Workers, AFL-CIO, Local 398, or in any other labor organiza-
tion of its employees, by discharging employees or by discriminating
in any other manner in regard to hire or tenure of employment or any
term or condition thereof.
(d) Refusing to recognize and bargain collectively with respect to
rates of pay, wages, hours of employment, or other terms and condi-
tions of employment with the above-named Union as the exclusive
representative of all Respondent's employees in the following ap-
propriate unit :
All production and maintenance employees including over-the-
road truckdrivers employed by Respondent at its Dallas, Texas,
plant, but excluding all office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Packinghouse, Food &
Allied Workers, AFL-CIO, Local 398, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection or to refrain
from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges, to employees Calvin Jackson, Theophi-
lus Wesley, Robert Dickerson, Nelson Thompson, Leon Hollings,
Robert Lee Granville, and James Shans, and, upon application, to
DU BOIS CHEMICALS, INC. 107
all employees who were on strike on and after September 22, 1961, in-
cluding Patrick Brashear, Luther Brokenbury, Jr., William Chatman,
Walter Cobb, Frank Sloan, George Johnson, Judge McGee, Johnny
McKinzie, Lonnie Lee Thompson, and Henry Wright, who have not
already been reinstated to their former or substantially equivalent
positions, and make all of them whole for any loss of pay they may
have suffered by reason of the Respondent's discrimination with re-
spect to them, in the manner set forth in the section of this Decision
and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this Decision and
Order.
(c) Upon request, bargain collectively with United Packinghouse,
Food & Allied Workers, AFL-CIO, Local 398, as the exclusive repre-
sentative of the employees in the above-described appropriate unit
with respect to rates of pay, wages, hours of work, and other terms and
conditions of employment and embody in a signed agreement any
understanding reached.
(d) Post at its plant at Dallas, Texas, copies of the attached notice
marked "Appendix." 6 Copies of said notice, to be furnished by the
Regional Director for the Sixteenth Region, shall, after being duly
signed by an authorized representative of Respondent, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that :
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in or activity in behalf of
United Packinghouse, Food & Allied Workers, AFL-CIO, Local
398, or in any other labor organization of our employees, by dis-
criminating in any manner in regard to hire or tenure of employ-
ment or any term or condition thereof.
WE WILL offer immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to Calvin Jackson,
Theophilus Wesley, Robert Dickerson, Nelson Thompson, Leon
Hollings, Robert Lee Granville, and James Shans, and, upon
application, to all employees who were on strike on and after
September 22, 1961, including Patrick Brashear, Luther Broken-
bury, Jr., William Chatman, Walter Cobb, Frank Sloan, George
Johnson, Judge McGee, Johnny McKinzie, Lonnie Lee Thompson,
and Henry Wright, who have not been already reinstated to their
former or substantially equivalent positions, and make all of them
whole for any loss of pay they may have suffered by reason of the
Respondent's discrimination with respect to them.
WE WILL, upon request, bargain collectively with United Pack-
inghouse, Food & Allied Workers, AFL-CIO, Local 398, as the
exclusive representative of all employees in the appropriate bar-
gaining unit described below in respect to rates of pay, wages,
hours of employment, and other terms and conditions of employ-
ment, and embody in a signed agreement any understanding
reached. The appropriate bargaining unit is :
All production and maintenance employees and over-the-
road truckdrivers employed at our Dallas, Texas, plant, ex-
cluding office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities in behalf of United Packinghouse, Food &
Allied Workers, AFL-CIO, Local 398, or any other labor organ-
ization, or threaten them in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist the said United Packinghouse,
Food & Allied Workers, AFL -CIO, Local 398, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
DU BOIS CHEMICALS, INC. 109
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named or any other
labor organization.
DuBois CHEMICALS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort
Worth 2, Texas, Telephone No. Edison 5-4211, Extension 2131, if
they have any questions concerning this notice or compliance with
its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on September 26, 1961, by United Packinghouse, Food &
Allied Workers, AFL-CIO, Local 398, herein called the Union, against DuBois
Chemicals, Inc., herein called the Respondent, the General Counsel, by the Re-
gional Director for the Sixteenth Region (Fort Worth, Texas), issued his complaint
and notice of hearing alleging that the Respondent had engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and
Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat.
136, 73 Stat. 519, herein called the Act. The Respondent filed an answer denying
the commission of unfair labor practices
Pursuant to due notice, a hearing was held before Trial Examiner Sidney Lindner
at Dallas, Texas, on December 14, 1961, and January 31 and February 1, 1962.1
The General Counsel and Respondent were represented by counsel, the Union by
its field representative. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce relevant evidence, to present
oral argument, and to file briefs and proposed findings of fact and conclusions of
law with the Trial Examiner. I have fully considered the briefs filed by counsel
for the Respondent and the General Counsel in January, March, and April, 1962.
1 On November 12, 1961, the Regional Director of the Sixteenth Region of the Board
petitioned the United States District Court for the Northern District of Texas, pursuant
to Section 10(j) of the Act, for appropriate injunctive relief in this matter pending the
Board's final disposition of the General Counsel's complaint. On December 12, 1961, and
January 16, 1962, United States District Judge Sarah T Hughes rendered opinions hold-
ing, inter alia, that the evidence in Civil No. 8978 established reasonable cause to believe
that Respondent had engaged in and was engaging in acts and conduct in violation of
Section 8(a) (1) and (3) of the Act, and directed the Respondent "to offer to all men
employed on September 22, 1961, immediate reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority and other rights and
privileges ." Respondent was also enjoined "from discriminating against its employees for
the purpose of discouraging membership in a union and from interfering with their rights
to organize " All other relief prayed for was denied
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record 2 in the case, and my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
DuBois Chemicals, Inc, a Delaware corporation with its principal office in Cin-
cinnati, Ohio, and places of business, plants, warehouses, and other facilities in
the States of Ohio, New Jersey, Texas, and California, is and has been at all
times material herein engaged at said plants in the manufacture, sale, and distri-
bution of cleaning compounds and related products. The Respondent's plant lo-
cated at Dallas, Texas, is the only plant involved in this proceeding. During the
past year Respondent in the course and conduct of its business operations, pur-
chased, transferred, and delivered ,to its plant at Dallas, Texas, cleaning compounds,
components, and other goods and materials valued in excess of $50,000 which goods
and materials all were transported to said Dallas plant directly from States of the
United States other than the State of Texas. It was stipulated at the hearing and
I find that at all times material herein Respondent was engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Packinghouse, Food & Allied Workers, AFL-CIO, Local 398, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Organization of Respondent's employees
At the behest of employee Leon Hollings in a telephone conversation to Union
Business Agent Steve Mauser, a meeting of Respondent's employees was arranged
for the night of September 21, 1961. Thirteen of Respondent's employees 3 met
with Mauser at the union hall in Dallas. Mauser explained the purposes of col-
lective bargaining and the benefits that had been obtained for union members in
other contracts which the Union had with employers in the Dallas area. He also
explained the function of the Board and the possible avenues open to the em-
ployees in the event the Respondent denied the Union recognition upon its re-
quest. All of the employees present at the meeting signed union authorization cards.
Thereafter, a discussion ensued regarding wearing union buttons in the plant and
the possible consequences. Agreement was reached that the employees would wear
union buttons in the plant the following morning and if any employee was dis-
charged for this reason, the other employees would walk out in protest. Before
the start of work on September 22, employees George Johnson, Robert Lee Gran-
ville, and Walter Cobb, who had not attended the meeting on September 21, were
spoken to by other employees regarding the Union and advised of the agreement
reached by the men. Johnson, Granville, and Cobb signed union authorization
cards and agreed to go along with the decision of the others. Employee James
Shans signed a union authorization card sometime during the day of September 22.
B. The events on September 22
Mauser testified that about 8:20 a.m. on September 22, he spoke via telephone
with Sherman Palmer, Respondent's branch manager, at the latter's office in the
Dallas plant. Mauser identified himself, advised Palmer that the Union represented
the majority of Respondent's production and maintenance employees, requested
that the Union be recognized as the collective-bargaining representative, and asked
for a date to negotiate an agreement. After some discussion about a time when
they could get together, at Palmer's suggestion they agreed to meet at Respondent's
plant at 1:30 p.m. that day.
Immediately upon completing his telephone conversation with Mauser, Palmer
summoned Plant Manager Ronnie Robbins and Foreman Rocky White to his office.
2 By stipulation of the parties, the United States district court record was made a part
of the record herein
'During the week beginning September 18, 1961, there were in Respondent's employ,
exclusive of office help and the branch manager, 17 day-shift production employees,
3 nightshift production employees, 1 day-shift maintenance man, 3 truckdrivers, 2 day
supervisors, and 1 night supervisor. The day shift worked from 7:30 a.m. to 4 p in.
The night-shift hours were from 4 p.m. to midnight.
DU BOIS CHEMICALS, INC. 111
Palmer informed them of his conversation with Mauser and that the employees
were "going union ." Telephone calls were made to Respondent 's main office in
Cincinnati, Ohio, and to Morris Jaffe, attorney for Respondent in Dallas. Palmer
inquired of Robbins and White if they had heard anything about the union
meeting. They told Palmer the first thing they heard about it was when he called
them to his office and it was "complete news" to them.
Upon leaving Palmer's office about 8:45 a.m. Foreman White called a meet-
ing of the production and maintenance employees in the plant. Employee Leon
Hollings, corroborated in all essential details by employees Henry Wright, William
Chatman, and Judge McGee, testified that Foreman White inquired of the men
who met with "old man Mauser last night?" Chatman replied that all of the men
who were wearing union buttons met with him.4 White also inquired why the
men did not let him know they were going to join the Union . Employee Lonnie
Thompson told White that he could not join the Union and that in any event
,.it would be just the same as cuttin' our own throat to let you know it." White,
by an obscene remark, criticized the men for not letting him know about the Union,
and noted that it was just for such reasons that he also was surly. White com-
pleted his remarks with the statement, "I want to let you guys know the Union
is not here yet." The men were then told to go back to work.
Although White denied using the term "old man Mauser ," claiming he did not
know it at the time, the record reveals that in the meeting in Palmer's office minutes
before the name Mauser was mentioned . Moreover, White admitted asking the em-
ployees who had been to see the labor man, and why they did not tell him. He
denied the use of slurring or obscene remarks or saying, "The Union is not here yet."
Hollings, Chatman , and McGee appeared before me 5 and testified in a forthright, de-
tailed, convincing manner. I credit their testimony. I find , based on such testimony
and the admissions of White, that the interrogation and statements attributed to him
were made substantially as testified by Hollings , Chatman , Wright, and McGee.
Upon leaving the meeting, Wright reported back to Palmer that all of the produc-
tion employees were wearing union buttons . Palmer in turn so advised Attorney
Morris Jaffe.
Shortly after the 8 : 45 a.m . meeting, Hollings observed Plant Manager Robbins re-
move the timecards of the production employees from the rack . Hollings also testi-
fied without denial that after the men returned to work Foreman White came to him
and said he learned that Hollings was "the button pusher."
At 9:30 a.m. Palmer called Mauser at the latter's office in Fort Worth and inquired
if Mauser had any objection to transferring their 1:30 p.m. meeting to the office of
Attorney Jaffe. Mauser agreed and it was so arranged.
At 9:45 a.m., Robbins and White held another meeting with the production
employees and notified employees Calvin Jackson, Theophilus Wesley, Robert
Dickerson, Nelson Thompson, Leon Hollings, Robert Lee Granville, and James Shans
that they were to be laid off as of 11 a.m.6 because business was falling off. They
were also told that if Respondent had need for them in the future they would be
hired back.
Employee Walter Cobb testified, without contradiction, that after the meeting he
told Foreman White that the entire production crew was going to walk off the job
because of the layoffs. White said he knew that, but it was not his idea to lay off the
men. Cobb also told Robbins about the men walking off the job. Robbins, accord-
ing to Cobb, said he already had taken that under consideration. Robbins admitted
that Cobb talked to him about the men walking off the job. He testified he told
Cobb he had no power over such a situation and "that if they walked off, they just
walked off." Robbins did not impress me as a reliable witness. His testimony was
confusing, contradictory, and vague. I do not credit it. I find that the conversation
between Cobb, White, and Robbins took place substantially as testified to by Cobb.
At 11 a.m. White distributed the paychecks to the production crew at the timeclock.
They punched out, changed into their street clothes, and left the building. The 10
IIt should be noted that upon reporting for work the morning of September 22 all of
the production employees were wearing their union buttons One maintenance employee
had not attended the union meeting, did not sign a union authorization card, and did
not have a union button.
B Employee Wright appeared before Judge Hughes in the United States district court
proceeding . His testimony is set forth in the record there made , which is incorporated
in the record herein.
6 Employees were regularly paid at the beginning of their half -hour lunch period,
11 it in . on Friday, to enable them to cash their checks.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production employees who were not laid off 7 did not return to work that day. In-
stead most of them congregated at a gas station across the road from the plant.
When Palmer left the plant for lunch at noon, the 10 production employees who
had not been laid off had not returned to work. Palmer testified he thereafter went to
Attorney Jaffe's office for the conference with Mauser. Palmer and Jaffe met prelim-
inarily before the regular meeting. Palmer told Jaffe what had occurred at the plant
during the morning and that the production employees had walked out. It will be
recalled that earlier that day Palmer talked with Jaffe on the telephone and told him
that all of the production employees were wearing union buttons.
Present at the conference with Palmer and Jaffe were Mauser and Carl Wilson, an
attorney in Jaffe's office. Mauser told the group that the Union represented a majority
of Respondent's employees and that his early morning call to Palmer was made to
request recognition and set a date to negotiate a contract. Upon Jaffe's inquiry as
to the number of employees who had joined the Union, Mauser replied that the "vast
majority" or "over fifty-one percent" had joined. Mauser testified he told Jaffe that
if Respondent granted the Union recognition and agreed to timely negotiate a contract
he would be willing to submit proof of majority at the "proper time." 8 Jaffe then
expressed the thought that the Board's election procedure be followed. Jaffe remarked
that since Mauser had made speeches to the employees, Respondent would like to
present its side of the story to them. No mention of the layoffs and the walkout
was made by Palmer or Jaffe during the conference. Mauser left the conference and
proceeded to the Board's office in Fort Worth to file the Union's petition for certifica-
tion of representatives.
Mauser who had not been in touch with Respondent's employees at all during the
day did not become aware of the layoffs and the strike until after he arrived at his
home that evening and talked with employee Hollings.
C. Picketing and events after September 22
On the night of September 24,9 practically all of the laid-off and striking employees
met with Mauser at the union hall. It was agreed that Mauser and a small committee
of employees would go to the plant the following morning to talk with Respondent's
official in an attempt to straighten out their problem and take whatever other steps
they deemed necessary in the circumstances.
Shortly after 8 a.m. on September 25, Mauser and employees McGee and Wright
went to the plant and asked Palmer to meet with them. The sum and substance
of the meeting was that Palmer had nothing to say to Mauser and the committee.
Palmer was told that a picket line would be set up at the plant and unfair labor
practice charges filed with the Board. Picketing commenced shortly after Mauser
came out of the plant to report to the employees that he had no success with Palmer.
While the employees were thus engaged in picketing on September 25, Robbins and
Jack Salter, Respondent's production manager stationed in Cincinnati, Ohio, and
formerly branch manager in Dallas, who had arrived in Dallas on September 24,
came out to the picket line and handed the laid-off employees a form letter as fol-
lows
As of September 22, 1961, you are no longer employed by DuBois Chemicals,
Inc. If you will come to the office, you will receive your final salary check.
Demand is hereby made upon you for immediate surrender of your DuBois
uniforms and any other DuBois property in your possession.
JACK T. SALTER,
Production Manager.
Salter testified he then asked each striking employee if he wanted to come back
to work. All answered "No" and were given the following form letter:
You voluntarily left employment on Friday, September 22, 1961. You have
therefor been discharged from your job. If you will come to the office, you
will receive your final salary check. Demand is hereby made upon you for im-
mediate surrender of your DuBois uniforms and any other DuBois property
in your possession.
JACK T. SALTER,
Production Manager.
7 They were Patrick Brashear, Luther Brokenbury, Jr, William Chatman, Walter Cobb,
Frank Sloan, George Johnson, Judge McGee, Johnny McKinzie, Lonnie Lee Thompson,
and Henry Wright.
8 Mauser testified credibly that he had the signed authorization cards in his briefcase
with him and by "proper time" he meant when recognition was granted
9 The plant did not operate September 23 and 24, Saturday and Sunday.
DU BOIS CHEMICALS, INC. 113
The picketing was enjoined by order of the State court on September 27. It started
again on October 5 and continued until the employees were reinstated by order of
United States District Court Judge Hughes on December 18.
While the picketing was in progress , Salter came out to the picket line where he
talked with Chatman and McGee , two of Respondent 's oldest employees in point
of service, in an effort to get them to return to work . Thus Chatman testified, cor-
roborated in the main by McGee, that on or about September 26 Salter approached
him at the railroad spur near the plant where the employees were picketing and
requested that employee Wright leave because he wanted to talk to Chatman and
McGee. Salter wanted to know from Chatman and McGee if the men knew what
they were doing, and if they knew what they were joining.10 Salter, according to
Chatman , said he hated to see guys who worked that long for the Respondent lose
"everything down the drain" such as insurance and vacations . Salter inquired of
Chatman what he had to gain by joining the Union. Chatman replied he had
nothing to lose.
Salter admitted talking to Chatman and McGee on or about September 27. He
testified that a company truckdriver told him the men wanted to talk to him so he
went out to the picket line and engaged them in conversation . Salter testified fur-
ther that they wanted to know when he thought they could come back to work.
Salter told them he did not know "due to the situation at hand ." He also testified
that since he did not know "the legality of it" he did not know what to tell Chatman
and McGee. He inquired about their families and they, about his wife, and that
ended the conversation.
Chatman testified without denial that the next evening while he was standing in
the driveway of the Hooker Chemical Company, across the street from Respondent's
plant,11 Salter approached him and asked if he knew that McGee was getting ready
to go back to work. Salter wanted to know if Chatman and Cobb would also go
back to work. Chatman answered, "No." Chatman told Salter he would check
with McGee, but remarked that they would not go back unless the rest of the men
went back.
Chatman further testified that as a result of a conversation he had with Tom
Wilson , an assistant foreman for Respondent , who told him to get in touch with
Salter, he obtained Respondent's Cincinnati, Ohio, telephone number from one of
the office girls and on or about October 10 or 12, placed a collect, long-distance call
to Salter in Cincinnati . Salter, according to Chatman , told him to get the union men
together so he could talk to them and that he could take 10 of them back to work.
Chatman wanted to know from Salter if he would agree to have the union repre-
sentative present when he talked to them. Salter said , "No." Salter inquired of
Chatman what Mauser had to offer the employees , remarking , "He's eating the
chicken and feeding you all the feathers."
Salter denied unequivocally that he asked Chatman to call him , stating, "It would
have been impossible . I was in no way in contact with him." He also denied re-
questing anybody to deliver a message to Chatman. He admitted accepting the
collect call, and talking with Chatman. Salter testified that Chatman told him
some of the men were at the point where they were "awfully broke" and they won-
dered if anything was being settled and that he told him "no ," to the best of his
knowledge . Chatman then wanted to know what the chances were of coming back
to work and was told he would be glad to sit down and meet with the men at any
place they decided "whether it would be at [my] hotel, . . . or at the plant ." Salter
further testified that Chatman inquired how many men Respondent needed and
was advised "the usual 10 and that we could not take any more than that because
we did not need any more." At that point, Chatman asked Salter if he would be
willing to sit down and talk to him and the men and that Salter said, "Yes." Salter
also testified that later in the conversation , Chatman asked him if he would be willing
to talk to the men and their representative . Salter said he was not aware of any
representative and if the representative wanted to talk to anybody, he should talk
with Attorney Jaffe and not Salter because "[I] have no legal status with the Com-
pany." That ended the conversation.
Resolving the credibility of witnesses is a difficult and trying task. In arriving
at my resolution in this as well as in other instances in this report , I rely basically
on a careful scrutiny of the entire record in the case, all of which has been carefully
read and parts of which have been reread and rechecked several times; I also have
11 Salter was well acquainted with the older employees , having been Dallas plant
manager for 6 years until June 30, 1961
11 Chatman testified that picketing employees were instructed by the Dallas police to
stay 50 feet away from the plant.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached great weight to the impressions and reactions which I received from a
careful and searching scrutiny of the witnesses while testifying on the stand . Salter's
testimony , that he was not aware of any representative when Chatman asked if he
would be willing to meet with the men and their representative , is not believable.
Salter traveled from Cincinnati , Ohio, to Dallas, Texas, when the strike first started
in order to be on the scene . He must have acquainted himself with all of the facts
surrounding the strike and that the men were represented by a union . Furthermore,
I find it inherently improbable that Chatman , a laborer, would have taken it upon
himself to place a collect, long -distance telephone call without instructions from one
of Respondent 's supervisors as he testified . 12 Finally, Salter gave me the impression
that he was studiously attempting to conform his testimony to what he considered
to be the best interest of Respondent . I do not credit his testimony . I find, based
on the testimony of Chatman and McGee , that the conversations Salter had with
them took place substantially as testified by them.
Foreman White admittedly talked with employees Wright and Brashear and the
mother of Chatman over the weekend of September 23 and 24 "to try to get them
to come back to work." White testified he went by Wright's house and asked if he
was coming back to work . Wright said he did not know and inquired of White what
the other fellows were going to do . White then told Wright , "If you don't show up
Monday morning, then you have no job. I'll have to get somebody to replace you."
White told Brashear that if he did not report for work Monday morning he would
have to get somebody to replace him.
Mauser testified that on September 26, when Salter came out to the picket line,
he inquired why they could not get together and settle the matter . Salter, according
to Mauser , replied, "I 've got nothing to talk to you about."
Mauser testified without denial that on or about October 20 he called Salter on the
telephone and advised he heard Salter wanted to talk with him. Salter said he had
nothing to talk about to Mauser . When Mauser then said , "I thought you wanted
to settle this thing," Salter replied, "I did , but we'll settle it down the road some place
two or three years from now."
Salter testified that when he was outside of the plant on September 25 distributing
the letters to the employees on the picket line, some fellow hollered at him from
across the street , "Are you ready to sit down and settle this thing or do you want to
keep it closed?" Salter admitted he told the "fellow" he did not have anything to
say to him . He testified he did not know who the person was at the time
D. Conclusions
The fact that Respondent decided upon and imposed the September 22 layoffs
within several hours after learning of the Union 's demand for recognition and without
warning or notice to its employees , is in itself an extremely strong indication that
the layoffs were intended to discourage, and, if possible, defeat the organization of
the Respondent's employees and relieve the Respondent of the necessity of bar-
gaining with the Union.
I have carefully studied and analyzed all of the Respondent 's evidence and I must
reject its contention that the September 22 layoffs were caused by economic necessity
I am convinced from the entire record and I find that the action on September 22 was
taken by the Respondent in reprisal against its employees for their union activities,
and to serve as an object lesson to those employees it had not laid off what might
happen to them if they continued adhering to the Union.
I make this finding and conclusion notwithstanding proof adduced by Respondent
that: ( 1) for several years prior to June 30 , 1961 its regular complement of produc-
tion employees was 10 men and only when Palmer took over management of the
Dallas branch in July was the production staff increased so that a peak of 30 was
reached in August ; ( 2) it had been urging Palmer orally and in writing that he was
"using entirely too many men for [what you are] manufacturing and shipping"; 13
and (3 ) the Dallas plant's inventory was too high and it had only three orders on
hand on September 22. I am not persuaded by this evidence that such considera-
tions were the motivating causes of the layoff. These are my reasons . The layoffs
came within several hours after the Union requested the Respondent to recognize it
131n this regard , I have considered the fact that Respondent made no effort to rebut
this testimony by calling Wilson as a witness I have also given weight to the un-
contradicted testimony of Wright that about this time Assistant Foreman Wilson came
to his home to tell him that Salter wanted to talk to the men and make them a proposition
with a view toward getting them back to work
' See Defendant 's Exhibit No . 3 dated September 11, 1961, in United States district
court record.
DU BOIS CHEMICALS, INC. 115
as the representative of its employees and meet with it to negotiate a collective-
bargaining contract. Such action was preceded by the interrogation of the employees
concerning their union activities; the resentful, obscene remarks of Foreman White
over the failure of the employees to have taken him into their confidence; and the
failure to even hint or intimate to the employees that a layoff had been discussed
prior thereto by Respondent's supervisory staff and was being contemplated. On the
contrary Respondent' s actions before September 22 gave reasonable indication that
it had need for its entire production staff. Hollings testified without contradiction
that when he was hired as a forklift operator on August 23, 1961,14 Foreman White
after testing him out on the job said, "Now if you continue to move the merchandise,
and to stock it, and take care of it like you are doing now, you have a permanent
yob." 15 Cobb's credited testimony was that White said after he learned the em-
ployees organized into the Union "It wasn't his idea of laying them off." Chatman's
credited testimony was that he heard Robbins tell White "He would hire a whole new
crew if he have to."
On September 21, a day before the layoff, the Respondent decided to eliminate the
night shift comprising the jobs of three production employees. Were these em-
ployees precipitately laid off without being permitted to finish out the workday, al-
legedly because Respondent was trying to cut down on hours and men, as were the
men on September 22 after Respondent became aware of their union activities? The
answer is no. Plant Superintendent Robbins testified that on September 21, "We had
decided that we would take the men off nights and put them back on days, because
a lot of them was our old hands." It appears clear from the testimony of Palmer and
Robbins in this regard that but for the advent of the Union it was their intention to
give these employees work on the day shift comparable to that which they had per-
formed on the night shift. It is also significant in this regard that two of the three
night-shift employees were included in the layoff on September 22. The record also
reveals that the number of "orders on hand" was rarely, if ever, used as a criterion
for determining that layoffs of production employees were necessary.15 Finally the
record reveals that after July 9 the Dallas plant has never operated with but 10
production employees, and at all times after this date Respondent failed to reduce
its number of production employees to this figure.
Respondent's conduct and actions do not bespeak a sense of economic urgency
which could be the only justifiable explanation for the precipitate layoffs of Sep-
tember 22. The normal foreseeable consequences of the layoffs including the timing,
the extreme haste in making such a drastic cut in its production staff, and the Re-
spondent's opposition to recognizing the Union and dealing with it, which I find
present in the case, was obviously to instill in the employees a doubt as to the wisdom
of selecting the Union as their bargaining agent and even a fear of the economic con-
sequences if they should do so in a Board election which the Respondent apparently
intended to insist upon. Under these circumstances the layoffs interfered with, re-
strained, and coerced the employees in the exercise of their organization rights and
their free choice of bargaining agent under Section 7 of the Act in violation of Sec-
tion 8(a)( I) thereof. The appropriate remedy in such cases wherein a layoff con-
stitutes the unfair labor practice, also includes reinstatement and reimbursement for
loss of earnings. N.L.R B. v. J. I. Case Company, 198 F. 2d 919, 924 (CA. 8),
cert. denied 345 U S 917; N.L.R.B. v. Elwood C. Martin et al., d/b/a Nemec Coin-
bustion Engineers, 207 F. 2d 655, 659 (C.A. 9), cert. denied 347 U S. 917; N.L.R.B.
v. Piezo Manufacturing Co., 290 F. 2d 495 (C.A 2), enfg. 125 NLRB 686.
We turn next to the walkout of the 10 employees on September 22, following the
layoff of 7 of their number and the events with respect to the said 10 employees that
transpired thereafter.
The General Counsel contends the 10 employees struck in protest of the Re-
spondent's unfair labor practices, namely, the discriminatory discharges of the 7
employees, that it was an unfair labor practice strike which was prolonged by Re-
spondent's refusal to meet and bargain with the Union and by Respondent's solicita-
tion and individual bargaining with striking employees to get them to return to work
The Respondent on the other hand argues that the 10 men voluntarily left its em-
ployment on September 22, and refused the reemployment which was offered them on
14 The Respondent's records reveal that for the week ending August 27 1961 it had
21 production employees who worked a total of 944 regular hours
]5I do not accept Respondent's contentions set forth in its brief that the la3ofts on
September 22 were of "temporary" employees
19 For the week ending February 5 1961, there was one order on hand For the weeks
ending February 12, April 30, May 21 and 28, June 4, and July 15 there were two orders
on hand
681-492-63-v of 140-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 25. Further, that the strike which they engaged in was for economic
reasons and having refused to return to work when they were requested to do so, they
are not entitled to backpay.
Section 7 of the Act guarantees the right to engage in self-organization, collective
bargaining, and "other concerted activities" for "mutual aid and protection." Strike
activity is concerted activity within the meaning of the section, and the protection
of the Act comprehends strikes in protest against unfair labor practices as well as
strikes in support of economic demands. See N.L.R.B. v. Mackay Radio & Tele-
graph Co., 304 U.S. 333, 344. It is also well established that "if men strike in con-
nection with a current labor dispute their action is not to be construed as a renuncia-
tion of the employment relation and they remain employees for the remedial pur-
poses specified in the Act." See Mackay Radio, supra. "There is clearly no quitting
by them except in the sense that they refused to work as demanded during the con-
tinuance of the strike." J. A. Bentley Lumber Company v. N.L.R.B., 180 F. 2d 641
(C.A. 5). See also N.L.R.B. v. Gulf Public Service Company, 116 F. 2d 852
(C.A. 5).
Thus, it is clear and I find that the so-called "voluntarily" leaving of their work
by the 10 employees was a cessation of work in protest not only of Respondent's con-
duct in laying off the 7 employees, which I have hereinabove found to be in violation
of the Act, but also because Respondent refused to recognize and bargain with the
Union. I find further that such cessation of work was an unfair labor practice strike
at all times material herein.
Replacement of strikers is a valid exercise of the employer's right to operate his
business; discharge of strikers, because they struck, is an act of reprisal for their
exercise of rights under the Act. See Mackay Radio, supra; N.L.R.B. v. United
States Cold Storage Company, 203 F. 2d 924 (C.A. 5), cert. denied 346 U.S. 818;
Collins Baking Company v. N.L.R.B., 193 F 2d 483 (C.A. 5); J. A. Bentley Lumber
Co., supra.
In the instant case it is undisputed that none of the strikers had been replaced
on September 25. The record reveals that later in the week 1 of the 7 laid-off
employees and 1 of the 10 strikers did come back to work. Thus, when on Septem-
ber 25 the Respondent in plain and unmistakable words discharged the 10 striking
employees, told them to obtain their "final" paychecks, and to return the uniforms,'7
it could scarcely have chosen a less equivocal method of notifying the strikers they
were no longer employees of the Respondent. By such action Respondent violated
Section 8(a)(1) and (3) of the Act and I so find. See European Cars Ypsilanti,
Inc., 136 NLRB 1595; Bernhard Altmann International Corporation, 137 NLRB
229, footnote 1.
I find also that by the conduct of Salter and Foreman White, urging among others,
Chatman, Wright, Brashear, and McGee to return to work, even though unaccom-
nanied by threats or promises of benefits, Respondent thereby attempted to deal
individually with the employees at a time when a strike was in progress, thus violating
Section 8(a)(1) of the Act. See N.L.R.B. v. Montgomery Ward & Co, 133 F. 2d
676, (C.A. 9). See also N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company,
245 F. 2d 594, 597 (C.A. 5), footnote 3.
As to the interrogation and threats by Foreman White alleged by the General
Counsel to be in violation of the Act, the Respondent contends in its brief that they
come within the realm of free speech and since it was a fact that the Union was
not yet in the plant, he had every right to make that statement.
I have hereinabove found that White interrogated the employees about their
union activities. The inquiries did not have the purpose of determining the extent
of the Union's representation for any legitimate objective nor were they accompanied
by assurances to the employees that there would be no reprisals. I conclude and
find that such interrogation violated Section 8(a) (1) of the Act. See Orkin Extermi-
nating Comnany of South Florida, Inc., 136 NLRB 399; cf. Blue Flash Express, Inc.,
109' NLRB 591.
While it is true that at the time White called the meeting of the employees, the
Union was not "yet" recognized by Respondent as the employees' collective-bargaining
representative, his statement that "the Union is not in here yet" made in the context
,of the interrogation, followed closely by the layoffs found above to have been
discriminatorily motivated was a veiled threat and could reasonably be so understood
by the employees.
On the basis of the foregoing, the preponderance of the evidence, and the record
as a whole, I conclude and find that Respondent by interrogating and threatening
17 The letters are set forth in full above.
DUBOIS CHEMICALS, INC. 117
its employees , interfered with, restrained, and coerced them in the exercise of the
rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) thereof.
With respect to the allegation in the complaint that Respondent refused to bargain
with the Union, the parties stipulated at the hearing that (1) the appropriate unit
consists of all production and maintenance employees including over-the-road truck-
drivers employed at its Dallas plant, but excluding all office clerical, professional em-
ployees, guards, and supervisors as defined in the Act; and (2) 17 employees signed
union authorization cards on either September 21 or 22.18 The evidence reveals
that on September 22, 1961, the critical date herein, there were 24 employees in the
agreed-upon appropriate unit. I find that on September 22, 1961, and at all times
material thereafter the Union was and now is the duly designated representative of
a majority of the employees in the aforesaid appropriate unit for the purposes of
collective bargaining.
As has been set forth above, the Union via Mauser, having theretofore been
designated by a majority of the employees in the appropriate unit as their collective-
bargaining representative, requested Respondent to recognize it and set a date to
negotiate a collective-bargaining agreement. Palmer agreed to meet Mauser, but after
talking with Respondent's home office in Cincinnati, Ohio, and with Jaffe, Respond-
ent's Dallas counsel, transferred the situs of the meeting to the latter's office.
It is the contention of Respondent that it did not refuse to bargain with the
Union in violation of Section 8(a)(5) of the Act because it had a good-faith doubt
of the Union's majority and therefore was entitled to proof. It further contends that
upon its specific request for proof of majority, Mauser did not submit same but
only offered to show the signed authorization cards at the "proper time" and on
the expressed condition that Respondent "will grant recognition and agree to timely
negotiate a contract."
The law is quite clear as Respondent points out in its brief that when an employer
acts in good faith he may, of course, without subjecting himself to an infraction
of Section 8(a) (5) of the Act, challenge a union's asserted majority and require
proof of same. I note in this regard, however, that although Section 9(c) (1) of
the Act provides machinery by which the question of representative status may be
determined in a Board-conducted election, it has long been settled that an election is
not the only means by which representative status may be established. See United
Mine Workers v. Arkansas Oak Flooring Company, 351 U.S. 62, 71-72, and cases
cited in footnote 8 therein. The courts have uniformly held that where a union
has obtained authorization cards signed by a majority of the employees in an
appropriate unit, the employer, absent a good-faith doubt as to the reliability of the
cards, violates Section 8(a) (5) of the Act if he refuses to recognize and bargain with
the Union.19 The Respondent in its brief contends also that because the Union
agreed to the election and filed a petition for certification of representatives there is a
strong inference that it did not have proof of majority. In Southeastern Rubber
Manufacturing Co. Inc., 106 NLRB 989, 991, enfd. 213 F. 2d 11 (C A. 5), the Board
held, "the fact that a Union expresses an intention to file a representation petition
with the Board if the employer does not grant recognition voluntarily does not justify
a refusal to bargain where the evidence reveals that the employer had deliberately
engaged in unfair labor practices in order to dissipate the Union's majority and make
the holding of a fair election impossible."
We turn then to a determination of whether Respondent had a bona fide doubt
as to the Union's claim of majority. I have hereinabove found that within minutes
after the Union's first request for recognition at 8:20 a in. on September 22, the
Respondent embarked upon a coercive course of conduct by its interrogation of the
employees, whereby it learned with certainty that all of them were wearing union
buttons. It also threatened its employees, climaxing its antiunion campaign with
the discriminatory layoffs It was fully aware at 12 noon that all of the production
employees were striking in protest of the unfair labor practices.20 All of *hin
"As found hereinabove, 13 authorization cards were signed at the union meeting the
night of September 21 ; 3 were signed before work started on September 22; and 1 during
the day on September 22
10 See NLRB. v Dahlstrom Metallic Door Company, 112 F. 2d 756, 757 (C.A. 2) ;
N L R R v Parma Water Lifter Co., 211 F. 2d 258, 261 (CA. 9), cert. denied 348 U.S.
829; N.L R B. v Southeastern Rubber Mfg Co , 213 F. 2d 11, 15-16 (C A. 5) ; NLRB. v.
Hunter Engineering Company, 215 F. 2d 916, 918-923 (C A. 8) ; N L R B. v. Irving Taitel,
et at, d/b/a I. Taitel c& Son, 261 F. 2d 1, 4-5 (CA. 7), cert. denied 359 U.S. 944.
21 In Scobell Chemical Company, Inc. v. N L R B., 267 F. 2d 922, 925 (C A. 2), which
involved a strike situation after an employer refused to recognize and bargain with the
Union, the court of appeals said, "Even assuming that the Union did not represent a
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information was conveyed by Palmer to Jaffe before they started their meeting with
Mauser. None of it was told to Mauser who was totally unaware of what had taken
place at the plant that morning. To say the least, Jaffe was less than frank in
withholding this information from Mauser while at the same time suggesting he use
the Board's processes to establish proof of majority, which Mauser accepted.21 The
assertion by counsel that he asked Mauser if he had any proof of majority and "would
he make it available," 22 does not compel a finding that Respondent in fact entertained
a good-faith doubt.
On the record of this case, there can be little doubt that despite its present
protestations to the contrary, the Respondent's refusal to recognize and bargain
with the Union of September 22, 1961, and its suggestion that the Board conduct
an election was not sincerely motivated but was actuated for the purpose of gaining
the time necessary for the unfair labor practices previously committed to have their
full effect on its other employees. Indeed "the spirit of wholesome cooperation that
is implicit in a bona fide doubt does not normally find expression in such patent
interference and restraint as was evidenced here by Respondent. The Respondent's
objective actions clearly belie its pretense of subjective good faith." See Poultry
Enterprises, Inc., 102 NLRB 211, enfd. 207 F. 2d 522 (C.A. 5).
On the basis of the foregoing, and upon the record as a whole, I conclude and find
that on September 22, 1961, and thereafter Respondent violated Section 8(a)(5)
of the Act.
There is no showing here that, as a result of the unfair labor practices, the union
lost the majority which it had among Respondent's employees, but even if there had
been such a showing, Franks Bros. Company v. N.L.R.B., 321 U.S. 702, would be
applicable. In Franks the court held that, where a union's majority has been dissipated
by the employer's unfair labor practices, the Board may, as a remedy for the un-
fair labor practices, require the employer to bargain with the union for a reasonable
period notwithstanding that the Union no longer represents a majority of the em-
ployees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
As it has been found that on September 22, 1961, and at all times thereafter,
Respondent has refused to recognize and bargain collectively with United Packing-
house, Food & Allied Workers, AFL-CIO, Local 398, as the exclusive bargaining
representative of Respondent's employees in the above-found appropriate unit, it will
be recommended that the Respondent, upon request, bargain collectively with said
Union as such representative.
majority of the employees in the unit at the moment of the expressed request to bargain,
there can be no doubt that it represented a majority the next day, at the time of the strike
and picketing " See also NLRB v Barney's Supercenter, Inc, 2911 F . 2d 91 (C A 3).
21 Palmer testified he knew the production employees did not return to work after their
lunch hour on September 22 and that they remained out on strike He testified further
that in their preliminary meeting in Jaffe ' s office he told him of the walkout at the plant
that morning . I do not accept Jaffe ' s testimony that Palmer did not tell him about the
walkout, but only remarked that "he was wondering whether or not the men had walked
out"
22 In this regard it is interesting to note Palmer 's testimony , pages 257-258, United
States district court record:
Q. You stated that Mr. Jaffe didn ' t ask Mr . Mauser to show him the authorization
cards, isn ' t that correct'?
A. I believe the remark leading up to Mr. Mauser's statements that the proof
would be given at the proper time was, I suppose , his proof of representation.
Q. That's right-did Mr Jaffe ever ask him at any time for him to "throw them
out on the table and let's see them 9"
A. No.
DUBOIS CHEMICALS, INC. 1 19
It has also been found that Respondent discriminated in regard to the hire and
tenure of employment of its entire production staff by laying off Calvin Jackson,
Theophilus Wesley, Robert Dickerson, Nelson Thompson, Leon Hollings, Robert
Lee Granville, and James Shans on September 22, 1961, and by discharging Patrick
Brashear, Luther Brokenbury, Jr., William Chatman, Walter Cobb, Frank Sloan,
George Johnson, Judge McGee, Johnny McKinzie, Lonnie Lee Thompson, and Henry
Wright on September 25, 1961, while they were on strike in protest of the discrimina-
tory layoffs and to obtain union recognition. By order of District Judge Hughes
issued December 12, 1961, Respondent was directed to offer all men employed on
September 22, 1961, immediate reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and privi-
leges. There is indication in the record that Respondent has complied with the said
order of Judge Hughes. In the event that the order has not been fully complied with
it will be recommended that Respondent comply with same immediately, and with
respect to the strikers particularly, by discharging any replacements in order to pro-
vide work for such strikers. We turn then to the matter of backpay. Since both
groups of dischargees lost their employment for engaging in union activities, and
in both situations the discharges came about because of the employer's unlawful
conduct, logic would dictate that they should not be treated differently with regard
to backpay. In view, however, of the Board's "established practice" to award back-
pay to discharged strikers only from the date on which the employees make an un-
conditional application for reinstatement,23 I am constrained to recommend with
respect to the group of discharged strikers who were reinstated pursuant to Judge
Hughes' order prior to any unconditional application for reinstatement by them, that
no backpay be awarded them for the intervening period.
The General Counsel has urged in his brief that interest be allowed on the back-
pay award. At law, the element of loss caused by the passage of time during which
funds have been wrongfully detained is regularly remedied by an award of interest
on the principal sum, thus measuring the value of the loss. The request also seems
appropriate in equity so that there will not be an unjust enrichment of the wrong-
doer to the ensuing detriment of the discriminatee. The request is therefore granted
and it is recommended that interest at the rate of 6 percent be allowed on the back-
pay award.
Accordingly, it is recommended that said loss of pay, plus interest, based upon
earnings which Calvin Jackson, Theophilus Wesley, Robert Dickerson, Nelson
Thompson, Leon Hollings, Robert Lee Granville, and James Shans normally would
have earned from the date of the discrimination less net earnings, be computed on a
quarterly basis as established by the Board in F. W. Woolworth Company, 90 NLRB
289.
The variety of the unfair labor practices engaged in by the Respondent and the
circumstances under which they were committed demonstrate the need for an order
that is coextensive with the threat of future violations and I shall therefore recommend
a broad cease-and-desist order.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. DuBois Chemicals, Inc, is an employer within the meaning of Section 2(2)
of the Act.
2. United Packinghouse, Food & Allied Workers, AFL-CIO, Local 398, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices within the meaning of Sec-
tion 8(a) (3) and (1) of the Act by discriminating with respect to the hire and tenure
of its 17 production employees on September 22 and 25, 1961.
4. All production and maintenance employees including over-the-road truckdrivers
of Respondent employed at its Dallas plant, but excluding all office clerical, profes-
sional employees, guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
5. At all times since September 22, 1961, United Packinghouse, Food & Allied
Workers, AFL-CIO, Local 398, has been and now is the exclusive representative
of all the employees in the aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
23 See European Cara Ypsilanti, Inc., supra.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By refusing to recognize and by failing and refusing on and at all times since
September 22, 1961 , to bargain collectively with United Packinghouse, Food & Al-
lied Workers, AFL-CIO, Local 398, as the exclusive representative of the employees
in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaining of Section 8(a)(5) and ( 1) of the Act.
7. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Murray Golub, Selwyn Golub , and Albert Golub d/b/a Golub
Bros. Concessions and Deborah Lapp , Louis Lapp , Sanford
Lapp . Cases Nos. 2-CA-8534,2-CA-8541, and 2-CA-8542. De-
cember 13, 1962
DECISION AND ORDER
On August 24, 1962, Trial Examiner David London issued his In-
termediate Report 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 Intermedi-
ate Report. He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Intermediate
Report with supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Intermediate Report and the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following additions
and modifications:
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (1) of the Act by discharging Deborah Lapp, a super
visor, because of her husband Louis Lapp's union activities, and that
Louis Lapp was denied employment in violation of Section 8(a) (3)
1 The Respondent has requested oral argument. This request is hereby denied because
the record , the exceptions , and the briefs adequately present the issues and the positions
of the parties.
140 NLRB No. 16.