Dubois Fence & Garden Co., Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1966

156 N.L.R.B. 1003 (N.L.R.B. 1966)

DUBOIS FENCE & GARDEN CO., INC. 1003
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1015
Tijeras Street NW., Albuquerque, New Mexico, Telephone No. 247-0311.
Dubois Fence & Garden Co., Inc. and International Association
of Machinists and Aerospace Workers , AFL-CIO. Cases Nos.
12-CA-2979 and 12-RC-1947. January 18, 1966
DECISION AND ORDER
On August 20, 1965, Trial Examiner Robert Cohn issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended
dismissal of those allegations. Thereafter, Respondent and the
General Counsel filed exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the case, including the
'exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner as herein modified.'
The Trial Examiner found, on the basis of the testimony with
respect to the time and place where certain cards were signed and cir-
cumstances attending the signing, that the Union could not be found
to have represented a majority of Respondent's employees on
May 13, 1964, the date on which the Union demanded recognition and
bargaining. We do not agree with this conclusion.
The parties agree that the stipulated appropriate unit embraced
61 employees on the critical date. The Union has submitted 41 cards.
Of these, 32 variously dated cards had been forwarded to the Board's
Regional Office and received there on May 13, the critical date.
'In section I, C, 4 of his Decision , the Trial Examiner inadvertently found certain
conduct to be a violation of Section 8(a)(3) of the Act rather than of Section 8(a)(1)
which we find it to be.
156 NLRB No. 94.
-1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although these cards constituted a numerical majority, the Trial
Examiner refused to find that the Union was the duly designated
-majority representative because of some confusion in the testimony
with respect to the place where certain cards were signed and the cir-
cumstances surrounding their signing. However , Respondent con-
cedes the validity of 18 of these cards .2 And there are six other cards
in this group which plainly should be counted in the Union 's favor .8
The testimony shows that these cards were signed by the employees
concerned or by someone else properly authorized to sign for them.
While theare are some discrepancies in the testimony as to precisely
when and where certain cards were signed , we find that the aforemen-
tioned testimony with respect to the signatures affixed to the cards is
not tainted hereby and , as for the timeliness of thes cards , we have
already noted that they were received in the Regional Office on May 13.
A card purporting to be that of Edward Jones was also among those
received in the Regional Office on May 13. The Trial Examiner
rejected this card for the reason that Jones testified that he had not
-signed that card. However, the Trial Examiner found that Jones
credibly testified that he had signed a union authorization card and we
deem his admitted act of signing a card to be a valid authorization of
the Union to represent him.
Most of the confusion adverted to by the Trial Examiner arose from
-the necessity for requiring the reexecution of 8 to 10 designation cards
upon which employees had printed their names instead of affixing
their signatures . It appears that certain cards received in the
Regional Office on May 21 were cards that had been reexecuted.
Although these cards were received in the Regional Office subsequent
to the May 13 demand date, the basic facts as to each are sufficient to
persuade us that each of them was signed previous to May 13. Their
later receipt by the Regional Office is accounted for by the uncontra-
dicted testimony of DeLoach, special representative of the Union,
who asserted that he picked up the reexecuted cards on May 9 and
mailed them on May 12 to the Atlanta office of the Union, where they
were received on May 13. Summers , Grand Lodge representative of
the Union , likewise testifying without contradiction , stated that he
returned from out of town to Altanta on May 19, found the reexecuted
designations , and mailed them to the Regional Office, where they were
received on May 21 . One of these cards belongs to Clarence Scippio
and Respondent concedes the validity of his signature . With respect
3 They are the cards of Voydell Fleming, Alfonso Graham, George Simmons, Amos Whit-
field, Leo Taylor, A. J. Anderson, Carlis Lindsey, Leroy Fleming, Coetta Burney, Joe
Spand, L. J. Gainer, Jeff Brady, Jr., Manson Moore, Jr., Leslie Harris, Bellman Burney,
Aaron Kelly, Ulysses Murphy, and Clifford Reed.
8 Those of Sarah Desue, Samuel Fleming, Archie Hampton, James Brown, Billy Desue,
and Alfred Seymour.
DUBOIS FENCE & GARDEN CO., INC. 1005
to six other of these cards,4 there is testimony which shows that they
were signed by the employee himself or by another on behalf of the
employee with the latter's approval. No persuasive reason has been
advanced by Respondent for not counting these seven cards.
We do not deem it necessary to consider the other cards submitted
by the Union, for those discussed above constitute a clear majority of
designations as of May 13, 1964.
As a result of his disposition of the issue of the Union's majority
status, the Trial Examiner did not reach the further issue or defense
of Respondent's good-faith doubt of the Union's majority status. He
did state, however, that he would reject such defense in view of the
extensive campaign waged by the Respondent to dissipate the Union's
strength. In this conclusion, we agree with the Trial Examiner, and
find, that Respondent, in view of its numerous violations of Section
8(a) (1) and its demonstrated antipathy to the organization of its
employees, did not refuse to bargain because of a good-faith doubt of
the Union's majority status but merely sought time in which it might
undermine the Union's majority status. We conclude that Respondent
thereby violated Section 8(a) (5) of the Act.
Accordingly, we shall order Respondent, upon request, to bargain
collectively with the Union as the exclusive representative of said
employees, and, if an agreement is reached, to embody such under-
standing in a signed agreement .5
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications:
[1. Add the following as paragraph 1(a) and reletter the present
paragraph 1(a) and those subsequent thereto consecutively:
[" (a) Refusing to bargin collectively with the Union as the exclu-
sive collective-bargaining representative of the employees in the above-
described appropriate unit with respect to wages, rates of pay, hours
of employment, and other conditions of emp] oyment."
[2. Add the following as paragraph 2(a) and reletter the present
paragraph 2 (a) and those subsequent thereto consecutively :
["(a) Upon request, bargain collectively with the Union, as the
exclusive representative of the employees in the above-described
+ Those of Edward Davis, Richard Lee, Rex Murray , Frank Shaw , Fannie Buggs, and
Katherine Akiens.
6 We agree with the Trial Examiner's recommendation that the election of June 26,
1964, be set aside. However , in view of our holding that Respondent violated Section
8(a) (5) and our order requiring Respondent to bargain with the Union, we do not, of
course, adopt the Trial Examiner' s recommendation that a new election be directed.
Instead, we shall dismiss the petition in Case No 12-RC-1947 and vacate all proceed-
ings held in connection therewith.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit, with respect to wages, rates of pay, hours of employ-
ment, and other conditions of employment, and embody in a signed
agreement any understanding reached."
[3. Add the following as the first indented paragraph in the notice:
[WE WILL bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all
employees in the bargaining unit described below with respect to
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and if any understanding
is reached, embody such understanding in a signed agreement.
The bargaining unit is :
All production and maintenance employees, including plant
clerical employees at the Employer's Lake City, Florida,
operation, but excluding all other employees, including
office clerical employees, professional employees, employees
of independent contractors and producers, guards, and super-
visors as defined in the Act.]
[The Board dismissed the petition for certification of representative
filed in Case No. 12-RC-1947 and vacated all prior proceedings held
thereunder.]
TRIAL EXAMINER'S DECISION AND REPORT ON
OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
These are consolidated cases heard before Trial Examiner Robert Cohn in Lake
City, Florida, on various dates in April 1965. All parties were represented and par-
ticipated fully in the proceedings.
Case No. 12-CA-2979 arises upon a charge of unfair labor practices filed July 6,
1964,1 subsequently amended, by International Association of Machinists, AFL-CIO,
herein called the Union. The General Counsel of the National Labor Relations Board,
herein called the Board, through the Regional Director for Region 12, issued a com-
plaint on January 13, 1965, amended March 30, 1965, and further amended at the
hearing by counsel for the General Counsel of the Board, alleging violations of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein
called the Act, committed by DuBois Fence & Garden Co., Inc.,2 herein called
Respondent, Company, or Employer. Respondent duly filed its answer, amended at
the hearing, which admitted the jurisdictional allegations but denied the commission
of any unfair labor practices.
Case No 12-RC-1947 arises from a petition filed by the Union, resulting in an
election conducted by the Board among the Company's employees on June 26, which
the Union lost by a vote of 23 to 30. The Union filed timely objections to conduct
affecting the results of the election with the Regional Director, who conducted an
investigation thereon, and ren-'-red a report to th^ Boaid on Novem',er 23. The
report recommended that certain objections be overruled; however, it also recom-
mended that the election be set aside based upon findings that the Employer engaged
in certain wrongful conduct of such stature as to render a free choice in the election
impossible. Upon exceptions to the report filed by the Company, the Board decided
that the issues raised by the objections and exceptions could best be resolved by a
hearing. Accordingly, on December 21, the Board ordered the Regional Director
i All dates hereafter refer to 1964 unless stated otherwise.
2 The correct name of the Company as stipulated by counsel subsequent to the close of
the hearing.
DUBOIS FENCE & GARDEN CO., INC. 1007
to provide therefor, and for the Hearing Officer to render a report "containing reso-
lutions of the credibility of witnesses, findings of fact, and recommendations to the
Board as to the disposition of said issues." Whereupon, on January 13, 1965, the
Regional Director issued an order consolidating the representation case with the
complaint case, and duly noticed both for hearing before a Trial Examiner.
At the close of the hearing, counsel for General Counsel argued orally on the rec-
ord. After the close of the hearing, a brief was received from counsel for Respond-
ent, which has been duly considered.
Upon the entire record, including my observation of the witnesses and their
demeanor while testifying, I make the following:
FINDINGS AND CONCLUSIONS 3
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and summary of events
The Employer is engaged in the manufacture and sale of wooden fences, fence
posts, and related products at its Lake City, Florida, operation. There it purchases
raw material consisting of various kinds of trees and, through utilization of saws,
planers, and other wood fabricating machinery, produces wooden fences. Although
the exact size of the operation is not disclosed. I gather from the record evidence that
it comprises a rather large acreage upon which there are various buildings and sheds,
plus a lake and recreation area.
The employee complement is approximately 60, consisting almost wholly of per-
sons of the Negro race.4 These employees are largely unskilled and occupy the
lowest rungs of the economic and literacy ladders. Indeed, it is readily apparent that
most of the employees receive only the skimpiest sort of formal education and many
cannot read nor wiite.5 Over the years the Employer adopted a rather paternalistic
attitude toward its employees which took the form of advancing and loaning them
money for doctors, household, and various other purposes, taking them to the doctor
or dentist when they became ill at work, interceding on their behalf with local law
enforcement officers when they got "in trouble with the law," and the like
This attitude of the Employer was also reflected in the manner in which it man-
aged its operation. That is to say, there were no hard and fast rules relating to con-
duct on the job, absences, tardiness, etc. There was no seniority policy. However,
once a person became an employee of Respondent, and performed reasonably satisfac-
torily, it appeared that he (or she) could almost always obtain reemployment after a
period of unemployment resulting from discharge, quit, or layoff. Indeed, the exist-
ence of a criminal record did not deter employment or reemployment, the record dis-
closing that the local probation officer conferred with the plant manager respecting
the behavior of his probationers on the company payroll. In short, in the spring of
1964, when the organizational campaign on behalf of the Union began, Respondent
was operating a "loose ship," imbred with paternalism, and composed of primarily
semiliterate employees.
B. The organizational campaign and Respondent's reaction thereto
The Union's organizing campaign commenced on Saturday, April 25, with a meet-
ing at an employee's house in Lake City. Present at this meeting were approximately
20 to 25 employees and the International representative of the Union, Mr. R. E.
(Gene) DeLoach,6 whose home and base of operations is Savannah, Georgia After
some initial discussion concerning unionism in general, DeLoach explained the pro-
cedure which his union normally used in attempting to achieve representation for
collective-bargaining purposes. He produced a union authorization card and read it
to them. He explained that the card authorized the Union to represent them for
"As above noted, there is no issue as to the Board's jurisdiction or labor organization.
The complaint alleges sufficient facts, duly admitted by answer, upon which I may, and
do hereby, find that Respondent is engaged in commerce, and the Union is a labor orga-
nization , within the meaning of the Act
4 The only white employees, aside from management and supervisors, are the book-
keeper and one maintenance man
5 The significance of these facts will later become apparent with particular respect to
the employees' understanding of (1) the Union's organizational campaign, (2) the Em-
ployer's reaction thereto, (3) the Union's authorization cards, and (4) the procedures of
the Board.
9 Misspelled "DeLoazh" in the record.
100S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining purposes respecting wages, hours, and other conditions of em-
ployment, and that if a majority of the employees signed the cards he would request
recognition from the Company. He further explained that if the Company refused
recognition, there were other avenues for achieving the desired result through the
filing of a petition for an election with the Board, or the filing of unfair labor practice
charges.
An undetermined number of employees signed cards at that meeting, but the cards
were not taken up at that time by DeLoach. They were left in the custody of
employee Leslie Harris, along with some blank cards to be utilized in the cam-
paign. Harris became the acknowledged leader in the union movement and,
immediately after the meeting concluded, commenced calling upon employees at
their homes, seeking their suppoit in the campaign. He continued this activity the
next day-Sunday, April 26-and at the plant the following day. In addition to
individual solicitations, he thereafter chaired regular meetings of employees at the
education building of the Shiloh Baptist Church in Lake City, at least once a week
during the subsequent weeks of the campaign, during which he urged adherence to,
the Union.
Thereafter, on at least two occasions between April 27 and May 9, Harris dis-
patched by mail signed cards to DeLoach in Savannah. DeLoach, in turn, submitted
them to his regional office in Atlanta, Georgia. Sometime during this period, the
union office informed DeLoach that approximately 8 to 10 employees had printed their
names on the cards rather than having written them in longhand, and that new cards
should be secured from those persons. Because of the time factor, DeLoach called
Harris and gave him the list of names over the telephone, and requested that Harris
commence securing signatures. DeLoach came to Lake City on May 9 where he
attended a union meeting and secured the "re-signed" cards.
Thereafter, on May 12, DeLoach sent a registered letter to Guernsey Cline, presi-
dent and owner of Respondent, claiming that a majority of the production and mainte-
nance employees of the Company had authorized the Union to represent them for
purposes of collective bargaining, and requested recognition. About the same time,
the Union filed a petition with the Regional Office of the Board, seeking certification,
as the collective-bargaining representative of Respondent's production and mainte-
nance employees, which petition was docketed on May 13 as Case No. 12-RC-1947.
Thus, by May 13, Respondent was formally advised of the Union's interest among
its employees. It refused to grant the Union's request for recognition assertedly
because it doubted the Union's claim of majority status among the employees. How-
ever, such doubt was never communicated to the Union; indeed, Respondent never
answered the May 12 letter.
On May 29, the Union and the Company entered into a stipulation for certification
upon consent election, which authorized the Board to conduct a secret-ballot election
among the production and maintenance employees on June 26. As previously noted,
the election was held and the Union lost by a vote of 23 to 30. The Union claims,
that this loss was occasioned by the commission of extensive acts of wrongful and
unlawful conduct on the part of Respondent. The General Counsel claims that, gen-
erally speaking, the same conduct constitutes independent violations of Section
8 (a) (1) of the Act, and the complaint herein lists some 28 instances of alleged vio-
lations occurring between May 14 and June 26.7 The complaint, as amended, also,
alleges that during the same period. Respondent discriminated against 10 employees
because of their union propensities, in violation of Section 8(a)(3); and finally, that
such conduct indicated that Respondent's asserted doubt of the Union's majority
status was not dictated by good faith but rather to serve as a means of gaining time
to dissipate such majority, thereby violating Section 8(a) (5) of the Act.
We may thus proceed to examine the evidence relating to these allegations:
C. The alleged discriminatory discharges 8
1. Leslie Harris
Leslie Harris originally commenced work for Respondent in early 1957 as a pole
peeler. From that time until the termination of his employment in the summer of
v Two additional violations are alleged as occurring after June 26.
Much of the conduct alleged as independently violative of Section 8(a)(1) occurred
in conversations between representatives of management (primarily Superintendent
Edward Sobek) and the alleged discriminatees. Accordingly, in order to avoid repetition
and redundancy, findings respecting some of the Section 8(a) (1) violations will be made
in this section of the Decision rather than in a subsequent section dealing exclusively
with such alleged acts and conduct.
DUBOIS FENCE & GARDEN CO., INC. 1009'
1964, Harris did not work continuously for the Company, but quit once or twice for
relatively short periods of time However, on each of these occasions, the Employer-
either called him back or sent word for him to return, which he did.
In 1960, he was transferred to operate a fork-lift machine, or hyster, which per-
formed the function of moving material in the yard. On or about June 2 he was.
relieved of this job-discriminatorily contends General Counsel-and put to cutting
panels for fences His last day of employment with the Respondent was Friday,
July 9 The complaint alleges that Harris was discharged on or about July 20, and
thereafter Respondent failed and refused to recall him, for discriminatory reasons.
Respondent contends that Harris voluntarily quit his employment.
As previously noted, Harris was by far the most active union adherent in Respond-
ent's employ. He attended all union meetings and personally conducted all but two,
(when DeLoach was present). Harris was instrumental in securing practically all.
union authorization cards signed during the campaign In sum, Harris was "Mr.
Union" at the plant
This status of leadership among the employees soon became known to the man-
agement as was evidenced by several conversations had among Harris, Sobek, and-
Guernsey Cline, president of the Company. Thus, in May, Sobek, on several occa-
sions, approached Harris to inquire what was wrong with the employees-that produc-
tion was simply not going through. Harris replied that he was not a stool pigeon..
Sobek made reference to Cline's past kindnesses to the people, and requested that
these be remembered on election day. At the same time, Sobek admonished that Cline
could get "damned nasty."
To the inquiry of Sobek as to what Harris thought a union could offer, the latter
replied that he thought it could make conditions better and help a person to make
more money. Sobek responded that the Company could not give any more money
and that the books were open to any union or government man that wanted to see.
them. Sobek then, apparently becoming a little annoyed and angry, accused Harris
of "pushing the union on the job" and said that Harris had been caught several times
wasting time on the job.9
Guernsey Cline also came up to Harris on several occasions during this period and_
asked questions relating to wages, working conditions, the Union, and also race rela-
tions. He asked Harris if the latter liked the Union, and after it was made clear that
the answer was "yes," inquired what good would it do. Harris gave the same reply
that he gave to Sobek. Cline responded that he would not have a union in his plant-
that he would close it down first. He further advised that his lawyer told him that
he need not have a union, that he could (apparently lawfully) close the plant down a-
section at a time.10
Harris explained to Cline the disappointments some employees had upon being
refused wage increases Cline asked if any of the employees had seen the "union
men." Harris responded that it was possible that several employees had seen him,
but that he did not know how many.
At one point in these conversations Harris said that Cline offered him a job in his.
New Jersey plant, which he declined. Cline asserted Harris was mistaken, that in
the discussion of wages, Harris said that he thought that a union could get him $2 to,
2.50 per hour, and Cline observed that DuBois Fence could never pay wages like
that, and that the only way Harris could make that kind of money would be to come to
New Jersey and become a fence erector. Cline denied that he offered Harris such a
job. I am inclined to agree that Harris probably misunderstood the rather subtle-
but real-distinction.
i The above findings are based on the testimony of Harris and Sobek, which was, for
the most part, mutually corroborative as to these conversations except that Sobek denied'
mentioning the Union or the "damned nasty" remark Sobek did not generally impress
me as a credible witness. He was evasive and took rather extraordinary lengths of time-
in responding to questions, particularly on cross-examination. I gained the impression
that rather than attempting to be truthful or avoid being caught in a trap, as Sobek
explained his hesitation, he was rather trying to fit his answers to the best presentation,
of Respondent's case
Harris was not particularly impressive as a witness either. As discussed more fully,
infra, he contradicted himself many times in the matter of identification of authorization,
cards. However, he was candid concerning such mistakes, and accordingly, as between
the two, I prefer to credit Harris as to these conversations.
lU This was not specifically denied by Cline ; he testified that he did not recall telling
this to Harris.
1010 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Harris also accused Cline of stating that he disliked Harris worse than any white
or colored man he knew; that Harris was agitating all over the place, and why didn't
Harris just get the hell out of the Company's plant. Cline impliedly acknowledged
Harris' "agitating" but claimed the reason for his annoyance and accusation was
because Harris was injecting race into the matter and creating friction between col-
ored and white persons. He assertedly told Harris that the latter had a perfect right
to be for the Union and that he (Cline) could understand how Harris could be in favor
of the Union, but that, on the other hand, Harris did not know or understand the
precarious financial condition of the Company.
Guernsey Cline impressed me favorably as a witness. However, his failure to deny
the threat to close the plant attributed to him leads me to believe that such threat was
made as substantially testified to by Harris. It is well established that such a threat
to close a plant because of union activities-albeit a section at a time-constitutes a
violation of Section 8(a)(1). I so find.
On June 2, Harris was relieved of his job on the hyster and put to cutting fence
panels, which General Counsel claims was discriminatorily motivated The reason
assigned by Respondent was that Harris was not performing the job properly; i.e ,
that he was wasting time talking to other employees and not moving the material,
thereby causing a logjam in production. Harris concedes that his wage rate was
not cut as a result; however, he claims that the new job did not offer, and he did not
work, as much overtime as previously. He further maintains that the Company had
never complained about his work on the hyster; indeed, he testified that Guernsey
Cline had told him that he was the best hyster driver the Company ever had.
A few hours after Harris' change in jobs, Sobek gave him a letter which read as
follows:
You have been warned on several occasions regarding your unnecessary con-
versations with other employees during working hours. If this practice con-
tinues, we will have no other alternative than to release you of your position.
Sobek conceded that this was the first time an employee ever received a written
warning.
Harris is a very energetic, volatile individual. As noted above, he became intensely
interested and active in the union movement. His job as hyster operator clearly
afforded him the opportunity needed to contact other employees during working
hours, on union business, to the neglect of his regular duties. I am convinced from
all the evidence including Harris' demeanor that he probably utilized this opportunity
to the fullest, to the extent that his efficiency as a hyster operator became seriously
impaired. Under the circumstances, the Company had two alternatives: (1) fire
him, or (2) offer him another job which restricted him to a single location. By
making the second choice, I cannot conclude other than that Respondent acted rea-
sonably and nondiscriminatorily especially where the wage rate was not cut although
the job required less skill." I shall, accordingly, recommend dismissal of that allega-
tion of the complaint
One day in early June, Superintendent Sobek called Harris and employee Joe
Spand together and informed them that he had received an anonymous telephone call
the evening before-about 2 a.m. Sobek related that the caller said that he knew that
the Company was good to its employees, but that he (the caller) knew who was
causing the trouble at the plant and offered "to take care of them " He mentioned Les-
lie Harris, Joe Spand, and Amos Whitfield by name. Sobek further related that he
told the caller not to interfere with the Company and not to call again
Sobek advised Harris and Spand that he was not trying to scare them but he
thought they ought to know. He also advised that he had informed the sheriff of the
call. Upon the employees' request, Sobek drove them to the sheriff's office where they
requested-and were apparently denied-a gun permit.
This incident, the facts of which are largely undisputed, is alleged and contended
by General Counsel to be a fabrication by Sobek solely designed to scare Harris and
Spand, and thereby unlawfully restrain them in the exercise of Section 7 rights, in
violation of Section 8(a) (1). I cannot agree. While, in the context of other unlaw-
ful conduct engaged in by Respondent to dissuade its employees from joining the
Union, I do not doubt that Respondent desired to fiighten the leaders of the Union's
campaign, a finding to such effect based solely upon the evidence adduced would
11 1 consider the asserted loss in overtime pay to be more conjectural than real, especially
where, during this particular period, the Company's business was suffering adversely from
lack of raw material.
DUBOIS FENCE & GARDEN CO., INC. 1011
rest, in my opinion, on mere suspicion and surmise. Accordingly, I find that by
relating the telephone call, and taking Harris and Spand to the sheriff's department
at their request, Respondent did not violate Section 8 (a) (1).
As previously noted, the election was held on June 26, which the Union lost. Har-
ris became severely depressed about the failure of the employees to support the union
movement at the polls, and, commencing July 12, failed to report for work. Although
the initial reason for such failure to report was car trouble and a sick baby, Harris
testified that on Tuesday of that week he "sent word" to the Company via fellow
employee, Clarence Scippio, that he (Harris) "wouldn't be coming out no more."
On Friday, July 17, he telephoned the Company and spoke with Mrs. Barbara Ann
Scott, the bookkeeper, as follows:
And she asked what had happened to me, and I told her that I had been with
my sick boy, and I didn't think-and then she asked me had I quit, and I told
her I didn't think I'd be coming in any more. I didn't think I wanted to work
with those people any more, after the union, which I thought everybody seemed
to want, 100 percent for, and something happened, and we all lost.
Later that day he went to the plant and had a conversation with Sobek and Fore-
man Frank Wilson:
We discussed, they asked what had happened to me, and I told them, and they
asked me had I quit, and I gave them the same explanation I gave Miss [sic]
Scott, that I thought it was best that I not be around there any more .... So I
gave them the explanation that I would not hardly be out no more, I never said
the word "quit," but I did make it clear I didn't think I would come out any more
on the job, that the people, I figured, had lust done me wrong; so I was on my
way; and Mr. Wilson asked was I going, and I said yeah, and Mr. Sobek also
asked did I want a recommendation, and I told him I didn't doubt that he would
give me one, and I was on my way.
By Sunday, July 19, Harris had a change of heart and telephoned Sobek at his
home requesting that he be allowed to return to work. Sobek replied that be thought
Harris had quit. Harris responded that he had been mad and "did want to blow off
a little steam," but that he now wanted to return to work. Sobek told him to come
out to the plant the next day and see Wilson.
Harris went to the plant the following day and saw Sobek, who advised that since
Harris had quit, and the Company apparently had no openings at that time, there
was nothing for Harris to do. Harris left.
General Counsel contends that the Company harassed Harris to such an extent
that his quitting must be construed as a constructive discharge. I do not believe that
the evidence warrants such conclusion; rather I am convinced, based upon Harris'
testimony, that he quit solely because of his disappointment at the failure of his fellow
employees to support him (the Union) at the polls. Accordingly, I shall recommend
dismissal of this allegation of the complaint 12
2. Manson Moore, Jr.
This person was employed by the Company in January 1958 and worked until he
was fired on May 27.13 There is a threshold dispute as to what work Moore was per-
forming at the time of discharge. He claims that for the 8 months preceding his dis-
charge he had been ripping back rails, which is sawing a pole lengthwise about an
inch off of one side to make it flat; the Company contends that he was cutting posts
(the wrong length) and generally not attending to his work. General Counsel, of
course, contends that the real reason for the discharge was Moore's union proclivities.
Moore attended the first union meeting and signed a card. It does not appear that
he engaged in other activities on behalf of the Union. However, he testified that
either on the morning of the company picnic (May 20), or the day before, he asked
Sobek for a loan of $10. Sobek refused to lend him "a damned thing," saying that
v The complaint , as amended , also alleges a discriminatory failure and refusal by Re-
spondent to recall Harris. This aspect of the Harris' case will be dealt with in a sub-
sequent section of this Decision dealing with a similar allegation respecting other employees.
38 Moore conceded having been fired twice during his employment-once in 1961 and
again in 1962. He did not recall the reasons, and the record does not reflect them.
217-919-66-vol. 156-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DuBois Fence was not a loan company.14 Sobek then launched into a discussion of
the Union and asked how the employees could do this to Cline after he had been so
good to them. Sobek then left Moore for a few minutes and spoke with Guernsey
Cline and his son, Jerry Cline, who was also connected with the Company as sales
manager and did some supervision of shipping. Sobek returned to Moore and said
he thought it best if Moore would look for another job. Moore assertedly asked him
if it was because of the Union, to which Sobek responded that DuBois Fence was not
a loan company and left.
On May 20, at the Company's annual picnic, Sobek, according to Moore's testi-
mony, asked him to engage in a game of horseshoes during which time Sobek asked
him what he thought about the Union. Moore replied that he thought it would be a
good thing if there would be an increase in wages, to which Sobek responded that
Moore did not know what he was letting himself in for, and that he had better
ask someone who knew something about the Union. Sobek further said that the
Company could not afford to have a union and the "there would be a lot of laying
off with a union."
Sobek admitted having had discussions with Moore concerning loans and having
refused loans to him; however, he denied that the Union was mentioned during these
conversations. Sobek further admitted playing horseshoes as Moore's partner
against Amos Whitfield and Leory Fleming at the company picnic, but denied any
discussion of the Union. In view of the reasons heretofore cited respecting Sobek's
credibility, plus the Company's announced policy, expressed in speeches by Sobek and
Jerry Cline the day before the election (as discussed more fully, infra), to disabuse
its employees of the advantages of joining the Union, I credit Moore as to these
conversations, since the latter impressed me generally as an articulate, truthful
witness. I, therefore, find the interrogation, refusal to grant a loan, and threat of
layoff to constitute violations of Section 8(a) (1), as alleged.
About a week thereafter, during working hours, Moore was at the water fountain
to get a drink of water when Foreman Frank Wilson approached and accused Moore
of loafing and "goofing around" and then said that Moore "looked like one of those
niggers that would have something to do ... with the union." 15 Moore replied that
he didn't like the word "nigger" and that if the Union came in he would be for it.
Wilson went to the office, and a few minutes later returned and said Sobek
wanted to see Moore in the office. There, Sobek told Moore that Wilson had
reported Moore's loafing to him. Moore asked how could that be so when he had
been ripping from 1,000 to 1,100 poles per day and no one had complained about
his productivity before the union activity began.16 Sobek responded that the Com-
pany could not "afford to have a man not working, drinking water and goofing
around, [and] that they would have to let [Moore] go."
Respondent's defense that Moore wasted material and time, which directly resulted
in his discharge, does not withstand close scrutiny. Thus, Wilson testified that as
early as March and April he would "say something" to Moore about these matters-
that at that time he had cut 9,000 posts the wrong length, that Wilson told him
not to cut any more but that 2 days later Wilson returned and Moore was still
cutting the posts the wrong length.
It would appear that if the situation was as testified to by Wilson , and as serious
as Respondent would have us believe, it would have either (1) ascertained the
mal-cut posts before 9,000 or more of them were produced, or (2) discharged Moore
in March or April. Indeed, Respondent in its brief states: "That Manson Moore,
Jr. should have been fired long before is really not open to question." Under these
circumstances , I can only conclude that it was Moore 's union sympathies which was
the final straw and caused the discharge. Thus even though sufficient grounds may
have existed to warrant discharge, if it was union activity which actually triggered
the action, a violation of the Act resulted. The principle is well stated by the Court
of Appeals for the Second Circuit in N.L.R.B. v. Great Eastern Color Lithographic
Corp., 309 F. 2d 352, 355, enfg. 133 NLRB 911:
The issue before us is not, of course, whether or not there existed grounds
for discharge of these employees apart from their union activities . The fact
14 The record is replete with evidence that from time to time employees received loans
and advances from the Company which were later repaid by deductions from payroll
However, the refusal to grant Moore a loan was not alleged as an act of discrimination
presumably because employees testified freely that on some occasions they were refused
loans while on others they were granted.
ie Wilson denied making this remark. His denial is not credited
10 Moore testified that he handed in daily production reports to this effect. The Em-
ployer did not proffer any documentary or other evidence in refutation of this fact.
DUBOIS FENCE & GARDEN CO., INC. 1013
that the employer had ample reason for discharging them is of no moment. It
was free to discharge them for any reason good or bad, so long as it did not
discharge them for their union activity. And even though the discharges may
have been based upon other reasons as well, if the employer was partly moti-
vated by union activity, the discharges were violative of the Act. If, for exam-
ple, the employer had long contemplated discharging . . . for his inveterate
smoking in violation of plant rules , and his joining the union was merely the
final straw, the discharge must be held to be improper.17
Accordingly, I find and conclude that by discharging Moore on May 27, Respond-
ent violated Section 8(a) (3) of the Act.18
3. L. J. Gainer and George Simmons
These two employees together operated a small Taylor; i.e., a lift truck.19 Since
the circumstances surrounding their work and termination were the same as to each,
their cases will be discussed together.
Both employees had been employed by the Company for many years,20 and had
operated the Taylor for approximately 3 to 4 years. There is no dispute that they
were the only two employees who regularly operated this particular piece of equip-
ment. On June 4 they reported for work, but left shortly thereafter because, they
contended, the equipment was broken and they had been instructed under such cir-
cumstances to leave and "make up their time" on a Saturday or holiday. The Com-
pany contends that they quit. The General Counsel urges that the refusal of the
Company to retain them in its employ under these circumstances constituted a con-
structive discharge. We proceed to an examination of the facts.
Both Gainer and Simmons had signed union cards during the first couple of days
of the campaign in late April. One day in the middle of May, Sobek came up to
where they were working, instructed them to turn off their machine, and inquired
what they thought of the Union. One of them (probably Gainer, since he was the
more articulate of the two) replied that "we thought it was all right, we liked it."
Sobek said that if they wanted a raise, why didn't they come to see him, that he
would have given it to them. He went on to tell them how well he had treated the
employees , mentioning such things as loans of money , getting them out of trouble
with the law, etc. He proceeded to point out that the Union would not do those
things for them-that with the Union they would have to pay dues and that there
would be strikes, that the Union would not mean more money for them since they
were already on a piece rate 21 He finally said that the imposition of the Union
would mean someone else would operate the Taylor and that, in any event, the
Company could not afford a union. I find that the interrogation and implied threats
contained in this conversation constitute violations of Section 8(a)(1) of the Act.22
"See also N.L.R.B v. Longhorn Transfer Service, Inc., 346 F 2d 1003 (C A 5),
Agwilsnes, Inc v. N L.R B , 87 F. 2d 146 (C.A. 5) (Employee Lazarus) ; A' L.R.B V.
Harris-Woodson Company, Inc, 162 F. 2d 97, 100-101 (CA. 4) ; NL.R.B. v. Jamestown
Sterling Corp , 211 F. 2d 725 (C.A. 2). That this would be true even in the case of a
"dissident and annoying employee ," see Duo -Bed Corp. v . N.L.R.B., 337 F. 2d 850, 851
(C.A 10)
18 Upon his request, Respondent rehired Moore in January 1965 and he was placed to
work pointing pickets. There was no contention by General Counsel that Moore's wage
rate was reduced or that he was otherwise discriminated against by placing him in this
classification . If there is such evidence or contention presently existing , it may be raised
in the compliance stage of this proceeding since the conventional remedy would be, of
course, reinstatement to his former or substantially equivalent position with backpay. On
this record, however, I shall only recommend that Moore be made whole
19 This piece of equipment was larger than the hyster operated by Leslie Harris, but
was not so large as the big Taylor which was also utilized for certain other purposes by
the Company and normally operated by Amos Whitfield.
29 Gainer since 1955 ; Simmons since 1957.
21 Unlike most of the other production employees who worked on an hourly rate, Gainer
and Simmons were paid by the number of railroad boxcars they loaded.
22 These findings are based upon a composite of Gainer 's and Simmons ' testimony, which
I credit. Sobek admitted that he pointed out the benefits of the Company such as the
2 weeks' vacation with pay, the job security, and the like. He denied telling them that
if the Union came in someone else would operate their equipment. He also denied that
they told him that they favored the Union since they didn't say a single word during the
conversation (Simmons testified that it was not much of a conversation since Sobek
did most of the talking ) Both Gainer and Simmons impressed me as being truthful wit-
nesses. To the extent their version of the conversation differs from Sobek's, I credit them.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few days later in a conversation between Gainer and Sobek outside the latter's
office, the former was complaining about the lack of raw material needed to finish
loading a boxcar. Sobek said that Cline ought to "close this damned place" down-
that if it was his he would have closed it down. Gainer conceded that Sobek did
not mention the Union during the conversation. This, taken with the undenied fact
that the Company was experiencing financial difficulties because of its inability to
acquire sufficient trees to produce fence, leads me to conclude that no violation of
the Act may be predicated on this conversation.
As previously noted, Gainer and Simmons reported for work on June 4, as usual;
however, Gainer arrived first about 6:50 a.m. A mechanic advised Gainer that the
Taylor would not operate properly because the power steering was broken. Gainer
tested it and confirmed that such was the fact. About this time, Foreman Frank
Wilson approached with an order to load some fence on a truck. When Gainer
pointed out that their Taylor was not operating, Wilson said that they could load
it with the big Taylor. Gainer and Simmons insisted that this could not be done
for several reasons: (1) that this was a "short order," 23 and Jerry Cline had
instructed them several years ago that they were not to load "short orders" because,
apparently, it would unduly complicate their wage rate procedure (since they were
paid by the number of railroad boxcars they loaded); rather, on such occasions,
they were to make up their time on Saturdays or holidays. Gainer and Simmons
insisted that they had been following these instructions since that time; 24 (2) the
fence to be loaded was under a small shed which was impassable for the big Taylor,
and (3) someone else was operating the big Taylor in an open field at the time.
Accordingly, Gainer and Simmons advised Wilson that they would not load the
fence on the truck. They waited around the plant for about an hour to see whether
the Company was going to have their Taylor repaired. When it was apparent to
them that nothing of this nature was going to happen, and receiving no further
instructions from Wilson nor Sobek, Gainer and Simmons left the premises with
no further notice to the Company, and without having punched in or out that
morning.25
The next day Gainer and Simmons reported for work and found that the word
"quit" had been written on their timecards. Gainer asked Wilson about this, but
Wilson said Sobek had written on the cards. Gainer proceeded to the office, but
Sobek had not arrived, so Gainer called Sobek at the latter's home. Sobek inquired
what Gainer was doing at the plant, and the latter said he came to work. Sobek
accused him and Simmons of quitting, to which Gainer responded that they had not
quit-their lift truck was broken.
A few minutes later, Sobek came to the office and confirmed to them that he had
concluded they quit and said something to the effect that they were against the
Company.
Sobek testified that he had considered Gainer and Simmons to have quit although
he admitted: (1) that Gainer (speaking for himself and Simmons) vehemently
denied an intention of voluntarily separating themselves from their employment with
the Company; and (2) that they advised him that their Taylor needed repairing.
Moreover, Sobek tended to confirm Gainer and Simmons' testimony that after they
left the plant the morning of June 4, the truck was loaded by having Leslie Harris
pull some panels out of a shed where they couldn't get the bigger lift truck and that
the truck was finally loaded by hand.
'Considering Gainer's and Simmons' protestations that (1) their lift truck was
broken, (2) they had received prior inconsistent instructions, and (3) they had not
intended to quit, I cannot accept Sobek's claim that he, in good faith, thought Gainer
23 An order which is less than a carload or truckload, and can be loaded in an hour
or two.
$' Jerry Cline corroborated this testimony to the extent that he instructed them that
"they should only load carload or truckload orders, and that they weren't responsible for
less than truckload orders, like several feet of fence that would go by common car-
rier ; . . He also testified, however, that he did not instruct them that his order should
supersede an order from other supervisory personnel
w The foregoing is based upon the credited testimony of Gainer and Simmons Wilson
testified that the Taylor was not broken ; that he handed the order to load the truck to
Gainer who refused, saying that they (Gainer and Simmons) did not load trucks, and
that thereafter Gainer and Simmons left and he got two other employees to load the
truck. (One of these employees was Leslie Harris who testified that he did operate the
small Taylor that morning, but that it was very troublesome to do so because the power
steering was, in fact, broken.) The Respondent's mechanic was not called as a witness.
DUBOIS FENCE & GARDEN CO., INC. 1015
and Simmons had voluntarily terminated their employment. It would seem, at the
very least, that Sobek would have taken their seemingly honest intentions into account
in reaching a conclusion as to what disciplinary action to impose.26 As previously
noted, the record clearly shows that Respondent normally condoned employees'
short periods of absence from the plant, even without notice or excuse.27 Certainly
in this instance it is doubtful that the extreme penalty of permanent separation would
have been taken had not an overriding factor been present in Sobek's mind. The
only significantly different event taking place was the union campaign and the Com-
pany's open hostility to it.
In short, I am convinced that had it not been for these employees' previous pro-
union statements to Sobek, he would not have seized upon his relatively insignificant
incident as a vehicle to separate them permanently from Respondent's employ.
Accordingly, I find and conclude that on June 4 Respondent constructively discharged
Gainer and Simmons in violation of Section 8 (a) (3) of the Act.
4. Coetta Burney
Coetta Burney was first employed by the Company in 1955. She worked until
1957 at which time she took maternity leave and was not employed again until 1960.
She worked from 1960 continuously through June 26, 1964, as a pole peeler. The
complaint alleges, in substance, that she was discharged on or about July 2 because
of her union activities; Respondent contends that she quit of her own volition.
Burney testified that she signed a union card at her home for Leslie Harris on
April 27 or 28. Subsequently, she had several conversations with Superintendent
Sobek concerning the Union, the first of which was on or about June 2 under the
shed where she worked. Sobek came over and asked her where her father, A. J.
Anderson, was. She informed him that he was away at a conference.28 Sobek
declared that it was a "damned shame" that Anderson was away from work, that he
had no one to bore posts, and that Anderson had not told him about his being absent.
Sobek commenced to walk away but then he turned around and said to Burney and
the others sitting around her that ". . . you people do as you damned please around
this job, whether the Union comes in or not, there's going to be some damned changes
made, and [I'd] be the one to do it ...;" Sobek continued, addressing his remarks
to Burney, that he had a strong feeling she was against the Company. She replied
that she was not against the Company-that if he was speaking of the Union, she
was only for something to better her condition. She stated that she had been work-
ing at Lake City Laundry before she came to the mill and that they didn't pay but
50 cents an hour. He said that if the girls wanted to go back to work at Lake City
Laundry for 50 cents it was all right-that they were only hurting themselves. He
further said that it made him sick to his stomach every time he heard the word
union; that it made him want to "throw up." 29
On Wednesday, June 24, 2 days before the election, at her work place, Burney
advised Superintendent Sobek that she would like to borrow some money because
she was moving and needed it to pay moving expenses Sobek refused and Burney
asked him if he would advance her salary. His reply was in the nature of a ques-
tion-couldn't she get the money from DeLoach in Savannah, Georgia. He went
on to say that the Union "don't give a damn about you and the Union would not
lend you money to pay your telephone bill, or your water bill, or your light bill,
or get you out of jail, or any of those things ...."
Burney conceded that this was not the first time that she had been turned down
on a request for a loan, but did state that it was the first time she had been turned
down for an advance on salary. Sobek admitted refusing Coetta Burney a loan
because she had too much money on the books at that time, and Guernsey Cline had
cautioned him about it. He also conceded refusing Burney an advance because it
created a lot of trouble for the bookkeeper and Burney was unusually persistent
about requesting advances and loans. He was sure that he had refused her an
2' Although there was some testimony that they had not always performed their work
with 100 percent efficiency, they had been the sole operators of the job for at least 2 years,
and there is no claim that they were discharged for inefficiency.
27 See, e.g , testimony of Coetta Burney.
28 A J. Anderson, an employee of the Company, was also a reverend in the church.
21 The foregoing is based upon the undenied testimony of Burney, since Sobek was not
questioned about this conversation.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advance before; however, no specific instance was cited. His assertion that he had
refused advances to other employees was undenied.30
The following day, Burney was performing a different job in a different shed struc-
tured in a separate area. She left this area to return to where the other women were
working when Sobek stopped her and asked where she was going-what she was
doing away from her job. Burney told him that she was going to get her hatchet
which she needed to cut the knots off the poles. Sobek inquired, "How was the
meeting last night?" Burney said, "What meeting?" Sobek replied, "The union
meeting." Burney denied that she had attended the union meeting and Sobek retorted
that he knew she was there-that someone had told him all who had attended the
union meetings , and that he knew that there were two women there. Later that day
he returned to where Burney was working and requested that she make a clean slate
of it and stop lying. He said that he knew she had been attending the meetings and
further he knew what was discussed at the meetings. He exclaimed that some of
the people would sell their souls for $5 and that no one would force Cline to do
anything-that Cline did not make his money mainly from DuBois Fence & Garden
Company but from stocks and bonds; "and he could close the mill down." He ended
by saying that the Union was no good for Burney and no good for the Company31
The interrogation, impression of surveillance, and threats contained in the fore-
going conversations between Burney and Sobek clearly constitute violations of Sec-
tion 8 (a) (3) of the Act. I so find.
On the day of the election-Friday, June 26-Burney had a conversation with
Sales Manager Jerry Cline at her work place about 1:30 or 2 o'clock in the after-
noon. This was before the election. Cline said that he was surprised and disap-
pointed that Coetta, A. J., and Bellman (referring to her father, A. J. Anderson,
and to her husband, Bellman Burney), three of the oldest employees there, would
go against the Company. He pointed out the favors that the Company had been
doing for them and that he felt that they would be loyal to his father, himself, and
the Company. He further advised that they didn't have to vote for the Union sim-
ply because they had signed a union card. Burney told Cline that the Company has
not treated the employees badly, but at the same time they had not received a raise
in about 2 or 3 years, and they thought the Union would help them to get better
working conditions. Cline replied that the Company needed her vote and support,
to talk to A. J. and Bellman and try to win them over. She said she would think
about it but that it would be difficult to persuade her father or Bellman to do
anything.32
Friday, June 26, was the last day Coetta Burney worked for the Company. A few
days prior thereto she had a conversation in the office with Barbara Scott, the book-
keeper. Scott had known Coetta Burney for some time as the latter had worked in
her home. Foreman Frank Wilson was present during the conversation. Burney,
who was pregnant at the time , stated that she was not feeling well and the work was
getting hard for her. She stated that she thought she would be just as "well off" if
the Company would lay her off and she could do "day work" for a day or two a
week. She stated that she wished the Company would lay her off so that she could
draw compensation. Scott replied that she would have to be laid off in order to
draw compensation-that she just couldn 't quit 33
80 Although the foregoing incident is alleged as an independent violation of Section
8(a)(1) in the complaint, the testimony does not correspond to the allegation sufficient,
in my view , to constitute a threat or coercive statement within the purview of that sec-
tion where (1) Burney conceded having been denied loans before, and (2 ) Sobek's asser-
tion that he had refused advances to other employees was unrefuted In any event, such
finding would not affect the remedy or scope of the Recommended Order herein
"The above is based upon the credited testimony of Burney . Sobel: was not inter-
rogated about this conversation.
32 The above is based upon the credited testimony of Burney . Jerry Cline admitted
having a conversation with her concerning the Union but could only remember that the
principal point of it was to inform her that signing the card did not obligate her to vote
for the Union.
a3 The foregoing is based on the credited testimony of Scott who impressed me as being
a truthful and candid witness . Her testimony is corroborated in all material respects by
that of Frank Wilson. Burney testified that she could not recall such a conversation.
Although I have credited her in other aspects of her testimony I do not accept the truth-
fulness of her asserted failure of recollection . "It is no reason for refusing to accept
everything that a witness says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe some and not all ." N L R.B.
v. Universal Camera Corporation , 179 F. 2d 749 , 754 (CA 2).
DUBOIS FENCE & GARDEN CO., INC. 1017
Burney did not work the first 3 days following the election apparently because she
was in the process of moving. Upon reporting for work on Thursday, July 2, she
found her timecard missing. She approached Frank Wilson and asked him where
he wanted her to work. He replied that he thought she had quit, and Burney asked
him where he got his information. He said from Sobek-that Sobek had said
Burney had called the secretary a few days earlier and asked for her pay or a loan
and if she was not able to get a loan to send her pay for the Thursday and Friday
of the preceding week. Burney acknowledged that one of the employees brought
the money to her on either Monday or Tuesday, but denied that she told the secre-
tary she had quit. Wilson then referred her to Sobek; however, the latter was not
in the plant at the time. About a week later she requested her father, A. J. Anderson,
to ask Sobek if she could return to work.
Anderson testified that he asked Sobek could Burney return to work. Sobek said,
"No, she can't come back to work, because she always kept something going out
here." Sobek testified on direct examination that he told Anderson that "there is no
reason why Coetta can't work here; but what she's been doing is, she 's been leaving
her job, and not doing her job, and she came and told Frank Wilson that she was
in a family way, and that she got too fat to work, she get too tired, she couldn't do
her work, and also . . . told Mr.Wilson and Mrs. Scott that she had hoped that I
would lay her off, so she could go collect on unemployment insurance ; so that it
didn't appear to me that Coetta wanted her job back, .... . However on cross-
examination , Sobek was quite indefinite and ambiguous as to why Burney's employ-
ment with the Company was terminated. He first denied that he had fired her,
stating that he would have fired her but did not. He then stated that "she probably
wasn't fired" but contended "I think I had good reason to fire her." Finally, Sobek
conceded that in a prehearing affidavit he testified that "Coetta Burney was termi-
nated because she was in trouble, etc." 34
Burney further testified without contradiction that she had been away from work
during the first part of the year 1964 for approximately a week without first notify-
ing the Company, and that she returned to her job without any representative of
management saying anything to her. She further testified that it was commonplace
for her to be away from her job for several hours without criticism from the Com-
pany. Thus, under these circumstances, and even though Burney had previously
indicated that she desired to be laid off, it does not follow that she voluntarily quit
her job especially where, as Scott testified, she advised Burney that if the latter quit
she would not be able to collect unemployment compensation. These facts, taken
with the Company's ambivalent position regarding the reason for its failure to recall
Burney convinces me that had it not been for her strong statements in support of the
Union, the Company would have allowed her to return to work when she requested
it on July 2. Accordingly, I find and conclude that such failure and refusal of the
Respondent constituted discrimination in order to discourage membership in the
Union, in violation of Section 8 (a) (3) of the Act 35
D. The alleged discriminatory refusals to recall employees
The complaint alleges that since on or about August 27, 1964, Respondent dis-
criminatorily failed and refused to recall A. J. (Amos) Anderson, Alfonso Graham,
Amos Whitfield, and Jeff Brady, Jr., to their former positions of employment or
other positions for which they are qualified, because of their membership in and
34Sobek made a further contention that the use of the word "terminated" was un-
fortunate, that it came at the end of a long session with the Board agent taking the
affidavit and that the Board agent "badgered" Sobek to the extent that he could not be
sure of what he was saying. However, Sobek's attorney was with him during the taking
of the affidavit and there is no contention that the Board agent refused to make any
corrections in the statement that Sobek or his attorney desired. Accordingly, I give the
affidavit full weight insofar as such statement was offered for impeachment purposes
as The Respondent in its brief mentions an additional reason why Respondent did not
allow Burney to continue her employment, viz-"That the Respondent was having bad
financial and production problems and that at this particular time it was not in a posi-
tion to indulge its more shiftless employees in their lackadaisical ways " However, this
reason was not mentioned by Sobek in either his prehearing affidavit or in his testimony
at the hearing, thus it can scarcely be considered a legitimate reason at this point
It is not clear from the record bow long Burney could have worked in view of her
pregnancy. However, that is a matter which lends itself to resolution more appropriately
in the compliance stage of the proceeding See Shawnee Industries, Inc, Subsidiary of
Thiokol Chemical Corporation, 140 NLRB 1451.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities on behalf of the Union.36 Respondent's position is that it was under no
duty to so recall these employees and did not do so except as to A. J. (Amos)
Anderson who Respondent reinstated to part-time employment in January 1965 at
Anderson's request. Indeed, Respondent refutes General Counsel's contention
that Anderson was laid off but contends that this employee was discharged for cause.
We proceed to examine the evidence as to these individuals:
1. A. J. (Amos) Anderson
This employee, the father of Coetta Burney, commenced work for the Company
in 1954 and worked there until laid off on July 22, 1964. At that time his job was
boring holes in fence posts. As previously noted, he was also a minister, and for
a brief period of time in the early part of June was away from work attending a
conference. When he returned, he had a conversation with Sobek at his workplace,
which he related as follows:
A. He (Sobek) said he wanted to talk with me, and he told me, he asked me
about the union, had I signed a card, and I told him, "Yes, sir," and he said,
"A. J., you've been with the company a long time, you're a minister, a leader
of the people, you ought to try at least to teach the people not to have a union
on the job, not to bring a union on the job."
Q. (By counsel for General Counsel.) Go on, if there was any more
conversation.
A. And then later on, he told me, we walked and talked, and he said if the
union come, we might have to sit down and the job would give out; "If your job
would give out, I couldn't switch about, if they run out of material"; and he
said, if you signed a card and the election come, you could vote "No"; of course,
it was like voting for a governor, or something like that, because nobody knowed
how you voted.
Q. Now, you testified something about switching around on the jobs; I didn't
quite understand that?
A. -Like moving my job around from posts, where I was already working, if
the union came on, I'd have to stay on that one job, and he couldn't keep me
there working, if that job ran out, I'd have to go home and be laid off.
The foregoing testimony, which I credit, clearly constitutes coercive interroga-
tion and a threat violative of employee rights guaraneted in Section 7 of the Act.
Accordingly, I find that by engaging in such conduct Respondent, by and through
its agent and supervisor, Sobek, violated Section 8(a)(1) of the Act.
According to the testimony of Anderson, on Monday, July 20, the Company
completely ran out of material for the employees who worked in his shed. Foreman
Frank Wilson advised that all of the five or six working there would be laid off and
to come back in a day or two. He instructed Frank Shaw and Ulysses Murphy to
come back on Wednesday and instructed Anderson to return on Thursday. Ander-
son did so, and checked in on Thursday morning to start work. Wilson came down
and asked who told him to come to work that day. Anderson replied that he
(Wilson) did. Wilson said, "You ain't supposed to come back; go check out."
Wilson instructed him to come back Monday and see if there was something to do;
if there was something, Wilson promised to put him back to work. Upon Anderson's
return the following Monday, Wilson said he still had nothing for him to do; how-
ever, Anderson testified that he saw Frank Pressly working on the boring machine
and that some posts were being run through. Anderson returned in another week
and spoke to Wilson about work, stating that he owed a substantial amount of money
on his car and would like to work if there was any possible chance. Wilson
responded, "I ain't got nothin for you to do; I got somebody else down there."
Anderson did not return after that 37
Wilson's testimony differs rather substantially from Anderson's. He testified that
he had warned Anderson four or five times about letting material pile up which needed
to be bored, that Anderson promised to do better but that about a week later the same
° The complaint originally listed Katherine Akiens along with the above-named em-
ployees. However, at the end of General Counsel's case-in-chief, he moved to dismiss
the complaint as to her, which motion was granted without opposition. Also included in
this discussion, as previously noted, is the alleged discriminatory refusal to recall Leslie
Harris to his former position or other position for which he was qualified.
As above noted, Sobek sent for Anderson in January 1965 and Anderson returned to
work in February 1965. It is not clear what job he was placed upon, but it was not
boring posts.
DUBOIS FENCE & GARDEN CO., INC. 1019
thing would happen. Anderson complained that he was not feeling well, and Wilson
said that he should go to a doctor. Finally, Wilson said that he watched Anderson
for 10 minutes while the latter failed to bore any posts and on that day decided to
discharge him, and did so. On the other hand, Sobek admitted that in a prehearing
affidavit he (Sobek) testified that Anderson was laid off on July 20 because there
were no posts on hand to bore.
In assessing the merits of the instant allegation, two significant factors must be kept
in mind:
(1) It is conceded on all sides that during the summer of 1964, due to unfavorable
weather conditions, Respondent experienced an exceedingly difficult time in securing
raw materials from which to manufacture its fence posts and related items, and that
production was diminished pro tan to. Thus it may reasonably be anticipated that
Respondent would have had to lay off some of its employees; (2) General Counsel
recognizing this economic necessity, alleged only that Respondent violated the Act
by refusing to recall these employees-not by discharging or laying them off. Thus,
the legality of Anderson's termination-whether it be termed layoff or discharge-
is not in issue. The only question presented for resolution is whether the Respond-
ent was under an obligation to recall Anderson after August 27, as alleged in the
complaint. To prevail on this theory, General Counsel must show that thereafter
work increased at the Respondent's plant to such an extent that a job became avail-
able which Anderson was capable of performing, but that Respondent failed and
refused to rehire him because of his previously expressed sympathies on behalf of
the Union.
Respondent submitted no records or other documentary evidence relative to pro-
duction or payroll during this period so that the findings herein are based solely on
secondary evidence; i.e., testimony of employee witnesses who observed increases in
productive activity and the presence of new employees on the job. It appears that
in early fall, Respondent commenced hiring a few new employees-five or six in num-
ber, composed of both men and women. The women "peeled poles" and the men
stacked pickets. One of the men operated a cleft machine and the other was a car-
penter. As the fall progressed, more employees were hired but some later quit or
left the employ of the Company for reasons undisclosed by the record. The credible
testimony of Leroy Fleming, corroborated to some extent by that of Leo Taylor, con-
firms that eventually there was some 15 to 20 new employees hired by the Company
during the fall of 1964. For the most part, the men were utility workers who did
different jobs. Taking into consideration: (1) that Anderson was a long-time
employee of the Company and was presumably capable of performing many of the
unskilled operations at the plant (Sobek had warned him that the advent of the Union
would circumscribe and limit the Respondent's authority to transfer employee from
one job to another); (2) that it was a policy or custom of the Respondent to recall or
rehire old employees after a period of economic layoff or, indeed, even' after they
were discharged; 38 and (3) that in the light of Respondent's extensive acts and con-
duct in opposition to the Union's campaign (including the discriminatory discharge
of Anderson's daughter, Coetta Burney, hereinabove discussed), I believe it to be a
reasonable inference and, therefore, find and conclude that had it not been for
Anderson's expressed sympathies on behalf of the Union and his close relationship
with his daughter and other prounion employees, Respondent would have recalled
him prior to January 1965. Its failure to do so constitutes discrimination to discourage
membership in the Union in violation of Section 8(a)(3), and I shall recommened
that Anderson be made whole for the discrimination practiced against him
2. Alfonso Graham
This employee was hired by the Company in the early part of 1964, and worked
continuously until he was laid off on July 22, 1964. For approximately 1 month prior
to the layoff his job was cutting panels on fences and, due to the decrease in Respond-
ent's production during the summer of 1964, Graham was the only employee who
regularly performed that job at that time
About 3 weeks prior to the election, Superintendent Sobek walked up to where
Graham and another employee, Billy Desue, were working. What ensued can best
be described in Graham's own words:
A. He walked up to us and told us to cut the machine off, and he started
talking, and he said that there were a very few people going around trying to get
us to sign cards for the union; but these people were only thinking of themselves,
See, e.g., case of Manson Moore, Jr., supra.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and these people who were trying to get us to sign these cards were the people
who drift from job to job, and never hardly stayed on one job, and that, you
know, they just weren't stationary, they would drift around all the time, and if
we signed these cards, it didn't mean we'd have to vote for the union, and he said
if we signed these cards and got the union, that the union would ask for more
money, and he said DuBois Fence and Garden Company was unable to pay any
more; he said there would be a strike then; he said during the strike we would
march, and they would feed you slop out of a big pot, and the company would
end up in the long run closing down; and he also said, yes, he said he wasn't
interested in whether we had signed or not, and he said that actually the union
didn't give a damn about us, that there was some guy came out there looking
for some sawmill where the people had tried to get a union, and he said they came
there by mistake, and he said he had a talked with the man, and the man had
told him, we don't care about those people, but the Government, they were
bound to the Government some kind of way that when you wanted to get a
union, that a representative had to come; there was some kind of way that they
were bound by the Government to go and see when these people are letting it be
known that they want a union ; he said this man told him that they didn't care at
all about the people, but they were doing what they were bound by the Govern-
ment to do.
Q. Do you recall anything else in this conversation?
A. He said that they'd done things, you know, for us, that the union wouldn't
do, and he had told us that if any of us boys out there got into trouble, he
wanted to know about it, and he said when someone got into a little misde-
meanor sort of trouble, you know, like getting drunk or speeding or something,
that they always liked to see about it, that they would see about it, but that the
union wouldn't do anything for us.
Q. (By Mr. WESTHEIMER.) Do you recall anything else that either you said
to Mr. Sobek, or Mr. Sobek said to you at this time?
A. Well, during the conversation, I said that the reason that I was for the
union was because I felt it was something that would help a person to better
himself, and he said that in some cases the union would be good, but it wouldn't
work on this job; he said this wasn't the type of job that the union would work on.
The foregoing testimony, which I credit over the denial of Sobek,39 clearly con-
stitutes interference with, restraint, and coercion of employee rights in violation of
Section 8 (a) (1) of the Act. I so find.
On the morning of July 22, as Graham was about to punch in, Foreman Frank
Wilson came up and said that the Company would not need him that day-that there
was a shortage of material-and that he would have to lay him off for a while.
Wilson further said that he would get word to Graham when the Company needed him
again . Since that date the Company has not contacted Graham nor has he contacted
the Company except to get his final paycheck which, I assume, was shortly thereafter.
As discussed above in connection with Anderson, other testimony in the record
indicated that near the end of the summer the Comany hired five .ew employees and
that later in the autumn additional new employees were hired. It is ordinarily true,
as Respondent contends in its brief, that a necessary element in a case of discriminatory
refusal to recall is proof that the alleged discriminatee made some effort to secure
employment, and here there was concededly none on the part of Graham. However,
in the instant case, in addition to the evidence hereinabove adverted to, that it was a
policy or custom of the Respondent to recall or rehire old employees after a period of
economic layoff, Graham's testimony that Wilson told him at the time of the layoff
that the Company would contact him when they needed him is uncontradcited in the
record. Moreover, contrary to the statement in its brief, Respondent sought out some
of these old employees in addition to Leslie Harris Thus Sobek admitted asking
L. J. Gainer to report back for work, and the Rev. A. J. Anderson testified without
contradiction that the Company "sent for him." It would seem, therefore, that this
practice would take the case out of the normal rule, and, accordingly, I am convinced
and find that Respondent would have recalled Graham to work during this period had
not his activities and outspoken sentiments on behalf of the Union him unfit, in
89 Desue was not called as a witness.
DUBOIS FENCE & GARDEN CO., INC. 1021
Respondent's view, for a job. I therefore conclude that Respondent's failure to
recall or rehire him after August 27, 1964, was discriminatorily motivated, in viola-
tion of 8(a)(3).40
3. Jeff Brady, Jr.
This employee was hired in February 1964 as a sawmill tailer.41 During his tenure
of employment, he also operated the edging machine.
Brady attended and signed a union card at the first union meeting on April 25.
Several weeks prior to the election he had a conversation with Superintendent Sobek
under the sawmill shelter. Brady did not articulate the contents of the conversation
very well; however, it apparently was concerned primarily with a comparison of
work in a union shop and the same job in a nonunion shop. Sobek observed-as he
had pointed out to other employees-that on a union job an employee could not be
moved from place to place; i e., that one has a particular job to do and when that job
runs out the employee has to leave the premises rather than being allowed to be
switched to another one. As Sobek was beginning to leave, he stated to Brady: "It
seems like you are for the Union, but if you are for the Union, I think you are mak-
ing a big mistake." I find these remarks of Sobek to constitute threats of loss of bene-
fits which would result to Brady and the other employees if they maintained adherence
to the Union They are therefore violative of Section 8 (a) (1) of the Act.
On the day of the election Brady wore a union button on his cap. Foreman Frank
Wilson walked over and asked: "What's that pretty pin on your cap?" Brady asked
him what he meant, and Wilson replied, "Oh, union, huh?" Brady replied, "That's
right " Wilson said, "Okay," and left.
As above noted, on July 21 Brady was laid off. As he was about to punch in Wil-
son walked up and said, "Wait a minute-it looks like I am going to have to lay you
off." Brady said, "Okay." No arrangements were made respecting his returning to
work, and he had not returned to work for the Respondent. Neither has he con-
tacted Respondent nor has Respondent atempted to contract him for employment.
Considering that he was a relatively new employee and that, unlike Alfonso Graham,
no promise was made by Wilson to him that Respondent would attempt to contact him
when work picked up, and that his union activities were not spectacular, I find that
General Counsel has failed to prove by a preponderance of the evidence that Respond-
ent has descriminatorily refused to recall Jeff Brady, Jr., to work. I shall therefore
recommend that the complaint be dismissed as to him.
4 Amos Whitfield
This employee began working for Respondent in April 1962 and continued until
laid off in the last part of July 1964. He drove a lift truck; i e. the large Taylor.
Whitfield signed a union card at the first union meeting. He wore a union button
the day before the election and the day after the election. Several weeks before the
election Whitfield had a conversation with Superintendent Sobek in the latter's office
conceining the former's request for a loan. This can best be explained in Whitfield's
own words
A. I went to the office and Mr. Sobek, he was in there, and I asked him could I
have a loan of ten dollars, and so he said yes, and he got up and he went to the
opposite office, and he got the checkbook, and he came back and he wrote me the
check He passed it to me and when I went to walk out, he says, "Amos"; I says,
"Yes, sir"; he says, "About this union," he says, "If I had a union out here, I
wouldn't be able to give out loans like this"; so I said, "Yes, sir " He said, "Amos,
now, just tell me this, what about this union?" So I stood there a few minutes,
and I looked at him, so he asked me, he says, "Amos, are you for the union?"
And I said, "Yes, sir, I'm for the union." He said, "Why are you for the union?"
And I said, "Well, because I think it will better my condition out here, and
make the job better"; I says, "The union can do a lot of things."
40 As previously pointed out, there is no dispute that by far most of the jobs performed
by Respondent's employees were unskilled or semiskilled, and that some of the jobs per-
formed by the employees newly hired in the late summer or early fall of 1964 were utility
man stacking pickets, cleft machine employee, one new employee in the backrail depart-
ment, and another in the pole peeling area As the evidence discloses that Respondent
freely transferred its employees from job to job with facility, I am convinced that Graham
was fully capable of performing one of these unskilled operations and would have been so
recalled had it not been for his union activities
"A taller is one who catches the lumber after it comes from the sawmill
1022 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
He says, he asked me had a union man been talking with me, so I told him
no, and he says, "You're sure no union man has been talking with you, filling
your head full of a whole lot of baloney?" So I ignored the fact, I told him no.
He says, "Amos, the union man can't do nothing but give you all a whole lot of
baloney," and he said, "There's not a word of it that's true." He says, "Amos,"
he says, "You know you've been talking to a union man, because there's union
talk all over the yard, and you know about it"; and so I still ignored the fact,
and I told him no, and he says, "Oh, Amos," and I says, "Yes, sir"; and he says,
"You must think I'm a damned fool." He says, "I know what's going on, and
you do too"; so I left then.42
The foregoing conversation clearly constitutes interrogation and threats violative
of Section 8 (a) (1). I so find.
A few days later about quitting time Sobek called Whitfield over to him and advised
that he had just been talking to Whitfield's probation officer, and that the latter
inquired as to Whitfield's activities at the plant. Sobek told Whitfield that he (Sobek)
told the probation officer that Whitfield was going the yard "talking union talk."
When Whitfield denied this, Sobek replied, "Oh yes, you are, because several of the
employees told me that you are running around over the yard talking union talk with
union cards in your pocket." At that point in the conversation, Whitfield inquired
of Sobek whether or not the probation officer had called him or whether Sobek had
called the probation officer. When Sobek affirmed that the former was the case, Whit-
field advised • "That isn't what he told me; because he went by my house and told my
mother and father to call, for me to call, and I called him, and he told me that [you]
had called him and told him that I was causing a disturbance out on the job, and I was
trying to organize myself [sic] for a union." Sobek denied that he told the probation
officer that, and reaffirmed that the probation officer called him (Sobek).43
The foregoing conversation, in which Sobek used to lever of the probation officer to
restrain and coerce Whitfield in his rights under the statute, clearly violates Section
8 (a) (1) of the Act. I so find.
Several days after the election Sobek approached Whitfield at his work station and
asked if the latter liked working there. When Whitfield responded in the affirmative,
Sobek asked him, "What about this petition that you all got signed against me?" 44
Whitfield asked him "What petition" and Sobek repeated: "The petition that you
people signed against me-you people are trying to get me in a whole lot of trouble.
When Whitfield denied again having signed a petition, Sobek responded, "Oh, yes,
you have, Amos; I know you've signed this, because I seen [sic] your handwriting, and
I know your signature." 45
As previously noted, Whitfield was laid off with some other employees on a day in
late July. He testified that Wilson told him one morning that it was too wet and that
he would have to lay Whitfield off. He instructed Whitfield to come back the next
day, which the latter did. Wilson advised that it was still too wet-that Whitfield
could not use the Taylor. Wilson told him to come back the following Monday.
42 The foregoing is based on the credited testimony of Whitfield. Sobek admitted that
he had had many conversations with Whitfield concerning a loan but denied that he had
told Whitfield that if there was a union in the plant Sobek would not be able to make
loans. This denial is not credited.
0 Sobek's version of this conversation is not substantially different from Whitfield's.
Sobek agrees that he had an argument with Whitfield concerning whether Sobek called
the probation officer or vice versa Sobek maintained that the probation officer called and
presumably asked him how Whitfield was doing Sobek told Whitfield that he (Sobek)
told the probation officer that Whitfield was "doing terrible," that he was not doing his
job properly, and that Whitfield "was around passing out cards and that I saw him pass
out cards." When Whitfield denied passing out cards, Sobel: testified that he said, "I'm
not interested in what you're doing with the cards, and I'm not interested in any of your
outside activities with the parole board, or what you do there, what I'm interested in
is your work right here." To the extent that Sobek's version of the conversation differs
with Whitfield's, I credit the latter.
44 This apparently referred either to the charge in this case or the objections to the
election filed by the Union. Whitfield had signed an affidavit in support of one or the
other (or both).
45 Sobek denied having any such conversation with Whitfield. His denial is not credited.
DUBOIS FENCE & GARDEN CO., INC. 1023
However, Whitfield did not return the following Monday because, as he testified, "I
figure that I can read between the lines; I know that they didn't want me out there any
more on account of the Union; so I went to hunt me another job."46
For the same reasons cited hereinabove with respect to Anderson and Graham, I
find that the General Counsel has proved by a preponderance of the evidence that
Respondent discriminatorily refused to recall Amos Whitfield to his job when normal
work resumed in the late summer or early fall of 1964. By this refusal and failure to
recall Whitfield, I find that Respondent violated Section 8(a)(3) of the Act.
5 Leslie Harris
I have previously found that, contrary to the allegations of the complaint, Respond-
ent did discriminatorily discharge or lay off Leslie Harris, but that this employee
voluntarily terminated or quit his employment on or about July 2. However, the
complaint, as amended, further alleges that since on or about July 20, 1964, Respond-
ent has failed and refused to reemploy Harris because of his membership in and
activities on behalf of the Union. The evidence shows that around February 1, 1965,
Harris contacted Guernsey Cline by telephone and indicated his desire to return to
work at the Company Shortly thereafter, Cline proceeded to Harris' house to dis-
cuss this matter as well as to see Harris about repayment on a loan to the bank when
Cline was apparently liable for. In any event, a discussion ensued as to Harris'
employment possibilities with the Company. Cline indicated that since jobs at the
Company were under the immediate jurisdiction of Sobek and Wilson that he could
not employ anyone without their okay, but that he would check with them.47 Cline
advised Harris to call him the following Monday, which Harris did. However,
Guernsey Cline was not in on that occasion and although Harris tried several times
thereafter to contact Guernsey Cline at the plant, he was unable to do so He has
apparently made no effoit since that date to get a job at the Company
Taking into consideration that Harris was a long-time employee of the Company
whose work was highly regarded prior to the institution of the union campaign, along
with those factors respecting company practices and policy regarding recall of laid-
off or discharged employees discussed hereinabove, I am convinced that Respondent's
failure and refusal to reinstate Harris upon his request in February 1965, was dis-
criminatorily motivated in violation of Section 8(a) (3). Accordingly, I shall recom-
mend that Harris be reinstated with backpay since that date.48
E. Additional evidence of interference, restraint,
and coercion prior to the election
As I indicated at the outset of this Decision, many of the allegations of independent
violations of Section 8(a)(1) of the Act occurred in connection with alleged dis-
criminatory discharges or layoffs; accordingly, discussion and findings respecting those
allegations have been made hereinabove. Based upon the credited testimony of
employee witnesses, undenied in some instances by the management representatives
involved, I find the following acts and conduct to constitute additional violations of
Section 8(a) (1) of the Act, and, as discussed infra, to lay the basis for a recommenda-
tion to set aside the election:
1. On June 25-the day before the election-Superintendent Sobek and Sales Man-
ager Jerry Cline called all the employees together on company time. Each made a
short speech respecting the Union and the impending election. Jerry Cline spoke first.
He testified that he attempted to make three points: (1) The Company did not want
a union because it would cause bickering and violence, mentioning the Florida East
Coast Railroad strike as an example; (2) the Company could lawfully permanently
replace employees if they went on strike, citing the Florida Steel Company situation
46 Whitfield testified that on the second or third occasion he reported for work, he
observed Leo Taylor , an employee , operating the lift truck which Whitfield normally
operated and that Leo Taylor had never done this while Whitfield had been working there.
Whitfield further testified that he had been regularly operating that lift truck since
June 1963.
"Cline also testified that he thought he might be able to help Harris get a job with
the Southern Railway Company ( Harris had been working for the Atlantic Coast Line
Railroad, but did not like that employment because it kept him away from his home).
41 See Shawnee Industries , Inc, 140 NLRB 1451
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as an example; and (3) even though some of the employees had signed union cards
there was no obligation to vote for the Union in the election. He also pointed out
that the Company had certain benefits without a union, and asked the question who
would like to work for 50 weeks and have 2 weeks' paid vacation. When the employ-
ees indicated their agreement, Cline said that is what the Company wished also49
Although denied by Cline, I credit the testimony of many employee witnesses who
testified that he also had a large, blown-up illustration of a ballot by which he showed
the employees how to vote "no" by placing an "X" in the "No" box, and that he stated
that if employees voted "yes," he would know who voted for the Company and who
voted against it. This statement, creating an impression of surveillance, is violative
of Section 8(a)(1) of the Act'o
Sobek spoke after Cline and pointed out to the employees the favors which the
Company had been granting over the years such as lending them money, getting them
out of jail, the company picnic, Christmas baskets, etc. Sobek denied stating that
any of those things would be discontinued if the Union came in, or that he would know
how the employees voted He admitted saying, respecting transfer of employees
from one job to another, that "it is possible that in negotiations with the Union, that
you might not be allowed to move from one job to another . . sometimes a job is set
up and if you've run out of work there, why, you are either laid off, or your job is
curtailed." However, based upon employees' testimony, and in the light of indi-
vidual conversations had between Sobek and employees hereinabove discussed, I find
that Sohek's language in this regard was a little stronger than he testified, and that he
stated, in substance, that if a union came in the plant the previous practice of allowing
employees to switch from job to job when their work was depleted would be discon-
tinued because of union rules.51 I find this to be a threat violative of Section 8(a) (1)
of the Act.
2. A few minutes after the speech, Jerry Clines asked employee Voydell Fleming
to have a Coke with him and they went over to the Coke machine. He told Fleming
that employees still had a chance to do right by the Company and vote "no," and if
the Union did not come in that he, Cline, would have a chance to tell his father that the
Company could pay the employees more money because the Company almost went
union I consider the foregoing an implied promise of benefit in return for fore-
going rights secured under Section 7 of the Act, and therefore violative of Section
8(a)(1).
3. One day in the middle of May, Superintendent Sobek asked employee Leroy
Fleming at the latter's work station what he thought about the Union. Fleming said
the thought it was a good idea-that it might mean more money for the employees
Fleming went on to explain that he could do practically any job around the plant and
yet he was making only 10 cents more than the minimum wage Sobek admitted that
Fleming should be making more but that the Company could not afford to pay more
at that time and that if the Union came in and asked for more money and the Com-
pany could not pay it then the Union would go on strike and the employees could be
replaced. I find the foregoing interrogation, considered in the context of the other
unfair labor practices of the Respondent, plus the fact that no assurance against
recrimination was given by Sobek, to be coercive and therefore violative of Section
8 (a) (1) of the Act.
4 The day before the election, employee Leo Taylor was standing near the drink
box wearing a union button when Superintendent Sobek approached and stated that he
knew Taylor was a union man and was going to vote for the Union. Taylor admitted
that he was, and Sobek inquired as to why he was turning his back on the Company.
Taylor replied that he was doing something that would help himself and the other
employees at the Company. However, Sobek advised him that was not so-that if
Taylor voted for the Union, "you're going to throw snake eyes." Taylor responded
that it would not be the first time he had thrown snake eyes.
In the same conversation, Sobek asked Taylor if a 20-cent raise would change his
mind and cause him to vote for the Company. Taylor said no-that if Sobek gave
him $1,000 he would still vote for the Union. Sobek scratched his head, smiled a lit-
tle, and said that he could not seem to get Taylor to see what the Union would do
for him-that it would not help him but hurt him and put him out of a job, that he
40 At that time the Company was providing a 2-week paid vacation for all employees
who had worked for the Company a year or longer
60 Nebraska Bag Company, at at., d/b/a Nebraska Bag Processing Company, 122 NLRB
654; Walton Manafacturing Company, 124 NLRB 1331.
6z Neither Cline nor Sobek wrote out their speeches, but spoke from notes and made
"off the cuff" remarks
DUBOIS FENCE & GARDEN CO., INC. 1025
would not work the year round. I find the foregoing statements to constitute threats
of economic harm which would inure to Taylor and the other employees if the Union
were voted in the plant, and therefore violative of Section 8 (a) (1) of the Act.
5. As hereinabove noted, the election was held on June 25-a Friday. Several
days before the election employee Joe Spand asked Foreman Frank Wilson when they
were going to get a shelter over his work place as the weather was becoming real hot.
Wilson replied that the job was going to close down on Friday and then he could
stay in the shade as long as he wanted to. I find the foregoing to constitute a threat
of loss of employment should the employees vote for the Union in the impending
election, and therefore violative of Section 8(a) (1).
Post Election Conduct
6. Several weeks after the election Sobek called Leo Taylor into the office and the
following conversation ensued, which can best be described in Taylor's own words:
A ... he (Sobek) said, "Did you sign a card?" I said, "Yes, I signed a card,"
and he said, "Why did you sign the card?" I said, "Well, I signed a card because
I wanted to union to represent me." He said, "No, no, no, gee, don't tell the
Government man that"; he says, "If you tell the Government man that, then that
would put me in Court about it"; he said, "Just say you signed-"
TRIAL EXAMINER: Wait a minute; what did you say9
The WITNESS: "You'd probably have to come to Court about it," he said; and
he said, "If you tell the Government man that you signed a card to get an elec-
tion," he said, "We wouldn't have a union out here on the job." I said, "No, no,
I can't tell him that." I said, "I got to tell him what you told me, the truth will
stand up"; I said, "I'll tell the truth, if I have to sit on your knee"; I told him just
that, so he said, "Gee, if I could get you and some of the other guys out here
would go around and tell some more of these guys that they just signed a card
just to get an election," he says, "it would help me, it would help the company,
and 'we wouldn't have no union out here."
I said, "No, Sir, I can't do it"; 1 said, "I will not do that."
An attempt by an employer to induce employees to give false testimony has been
held to be a violation of Section 8 (a) (1). Oregon Teamsters' Security Plan Office,
et al., 119 NLRB 207, 209.52
F. The alleged refusal to bargain
As previously evidenced, on May 12 the Union sent a letter to Respondent which
advised that a majority of the production and maintenance employees had authorized
the Union to represent them for collective-bargaining purposes, that the Union
requested recognition as collective-bargaining representative, and proposed a date to
commence negotiations. Respondent never replied to this letter or otherwise com-
municated with the Union.
The complaint alleges, and the answer admits, that a production and maintenance
unit is appropriate. The parties further stipulated that as of the critical date-
May 13-there were 61 employees in the unit. General Counsel proffered 41 union
authorization cards of employees into evidence through which he sought to prove that
at the time of the Union's request, it had "signed up" a majority of employees in the
unit. General Counsel's theory is the familiar one that Respondent's refusal, there-
after, to accord recognition to the Union was not based on a good-faith doubt of
majority status, but reflected a desire on the part of Respondent for delay in which
to dissipate such status. General Counsel argues vigorously that the extensive and
multifarious acts of coercion, restraint, and discrimination detailed above amply sup-
port his thesis.
Respondent, for its part, just as staunchly contends that the proof fails to show that
the Union ever achieved an uncoerced majority-ceitainly not by the critical date-
and that even assuming it did, Respondent had ample grounds for doubting it. Since
sa The record reveals that Sobek make the substantially same request of employee Leroy
Fleming in August 1964 I find this to be an additional violation of Section 8(a) (1).
Employee Clarence Scippio testified that several weeks after the election Superintendent
Sobek had a conversation with him concerning the Union The contents of the conversa-
tion render it improbable that it took place after the election ; indeed, my notes indicate
that Scippio testified that the conversation took place 2 or 3 weeks before the election
I -make no finding on this incident since, in any event, it would wake no difference as to
the nature and scope of the remedy and order recommended herein
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's principal attack is a frontal one upon the authenticity and probative
value of the cards themselves, a rather detailed analysis of the evidence concerning
their signing and execution is called for.
As previously described, Leslie Harris was the prime mover in the union movement
and was assertedly responsible for securing practically all of the signatures on the
union cards At the hearing, all such cards (except for Manson Moore, Jr.) were
originally identified by Harris as one who actually signed the card as a witness for an
employee signatory, or was present at the occasion of the signing even though some-
one else actually placed his name upon the card as "witness."
In addition to Harris' identification, however, 15 cards were further identified and
corroborated by the employee who signed the card and testified as a witness. These
cards,53 plus four others,54 Respondent concedes as having been validly identified and
established "under existing Board and Court authority." However, Respondent
strongly attacks the validity of the remainder of the cards based upon: (1) failure
of General Counsel to call as witnesses the employees whose signatures were sought
to be proved; (2) Harris' contradictory statements respecting the time, place, and
other circumstances surrounding the signing of some of them; and (3) alleged coer-
cive and fraudulent statements made by Harris or others on the occasion of the
signing.
I have no difficulty in rejecting (1) above since the Board has, with court approval,
sustained the authenticity of authorization cards where proven only by the attesting
witness.55
However, I have much more difficulty with (2) above in view of Harris' testimony,
much of which, as Respondent points up in its brief, is patently contradictory on
cross-examination from what it was on direct respecting the time, location, and/or
witnesses to the signing of the cards With respect to time, Harris stated flatly during
direct examination that all the cards he identified were signed on 1 of 3 days-
April 25, 26, or 27. Yet, on cross, he was forced to admit that he had been in error,
and that some of the cards had been signed later, and that some had to be "re-signed"
because the names had been printed rather than signed in longhand.56 Finally, Har-
ris abjectly testified as follows:
Q. (by Mr. FORD.) I give you General Counsel's Exhibit 3(p); whose name
purposes [sic] to be on that card?
A. Frank Shaw.
Q. Where was that signed9
A. This is a resigned card, at his home; he signed twice.
Q. When was this?
A. It was resigned in May. The date's wrong, It's wrong on all these cards,
that's what I wanted to say: I didn't have nothing to do with the date signing;
the entire date signing is fouled up; how it is, I don't know, but now, these cards,
there's no way in the world, all the cards could be dated April 26 or 27; you see,
there was a certain batch, I admit, got off; but when this resigning and all took
place, then some of those cards went down along the line, May 3rd, 1st, 2nd, all
the way up until the last batch was sent off.
In view of Harris' admission that "the entire date signing is fouled up," I give no
weight at all to the date appearing on the card. However, since 32 of the 41 proffered
0 These cards are those of Voydell Fleming (General Counsel's Exhibit No. 3 (e))
Alfonso Graham (General Counsel's Exhibit No. 3(g)) ; Clarence Scippio (General Coun-
sel's Exhibit No. 3(k)) ; George Simmons (General Counsel's Exhibit No. 3(s)) ; Amos
Whitfield (General Counsel's Exhibit No. 3(t)) ; Leo Taylor (General Counsel's Exhibit
No. 3(u)) ; Carlis Lindsey (General Counsel's Exhibit No. 3(v)) ; A. J. Anderson (General
Counsel's Exhibit No. 3(y)) ; Leroy Fleming (General Counsel's Exhibit No. 3(bb))
Coetta Burney (General Counsel's Exhibit No. 3(cc)) ; Joe Spand (General Counsel's Ex-
hibit No. 3(ff)) ; L. J. Gainer (General Counsel's Exhibit No. 3(hh)) ; Jeff Brady, Jr.
(General Counsel's Exhibit No. 3(jj)) ; Manson Moore, Jr. (General Counsel's Exhibit
No. 3(kk)) ; and Leslie Harris (General Counsel's Exhibit No. 3(11)).
54These cards are those of Bellman Burney (General Counsel's Exhibit No 3(z))
Aaron Kelly (General Counsel's Exhibit No. 3(mm)) ; Ulysses Murphy (General Counsel's
Exhibit No. 3(nn)) ; and Clifford Reed (General Counsel's Exhibit No. 3(oo)).
55 N.L.R.B. v. Economy Food Center, Inc., 333 F. 2d 468 (C.A. 7), enfg. 142 NLRB 901 ;
The Colson Corp. v. N.L.R.B., 347 F. 2d 128 (C.A. 8), enfg. 148 NLRB 827.
56DeLoach testified that 8 to 10 cards fell in this category but that he did not know
whose cards they were.
DUBOIS FENCE & GARDEN CO ., INC. 1027
cards bear a stamp on the back signifying that they were received in the Board's
Regional Office on May 13, I would find that those cards, with the exception of the
card of Edward Jones,57 were signed in apt time irrespective of the date on the card.
This reduces the number of valid cards to 31.
This bare majority must be further evaluated, however, in the light of the con-
fusion and contradiction in Harris' testimony respecting the place of the signing of
some of the cards; 58 the concession that as to many cards he identified as having
been signed at meetings, he really did not observe being signed at all but only saw
the alleged signatory writing something on the card and handing it in without it
ever coming into the possession or control of Harris; 59 and the uncertainties of
Harris' (and Deloach's) testimony concerning the circumstances surrounding the
"re-signing" of some of the cards. For example, Harris identified Frank Shaw's
card as being one of the resigned ones; however, Shaw, when called as a witness,
only testified that he "agreed to let Leslie Harris fill out one," and was not interro-
gated about resigning the card.
In sum, the record here, as in the recent case of Trend Mills, Inc.:
... raises such grave doubts about the validity of a sufficient number of the
cards submitted by the General Counsel that the Union's assertion of majority
representation at the critical time cannot be sustained.60
I find and conclude that General Counsel has failed to prove that on May 13, or
at any time thereafter, the Union represented an uncoerced majority of employees
in the unit.61 Respondent was therefore not required to bargain with the Union at
the latter's request. I shall therefore recommend that this allegation of the com-
plaint be dismissed.62
87 Edward Jones credibly testified that he signed a card but that the card introduced
into evidence (General Counsel's Exhibit No 3(i), bearing the Regional Office date of
May 13) was not the card he signed.
se See, e g., testimony concerning the cards of Edward Jones, General Counsel's Exhibit
No. 3(i) ; Willie Wilson, General Counsel's Exhibit No. 3(i) ; Leroy Fleming, General
Counsel's Exhibit No. 3(bb) , and L P Daniels, General Counsel's Exhibit No 3(ee)
ew For a prime example of confusion, consider the following testimony concerning the
identification of L P. Daniel's card (General Counsel's Exhibit No 3 (ee) ) : Harris testified
that Daniels (who could not write) placed an "X" upon the card and allowed Clifford
Reed to sign it for him at a union meeting, and that Alphonso Graham witnessed the
procedure. Graham (a witness for General Counsel) testified, however, that he did not
see Daniels place his "X" on the card, did not see who signed the card, and actually
"didn't know for sure" who had signed the card. Daniels, for his part, testified that
he had Ulysses Murphy sign it for hun at the former's home. The capstone of this
conflicting maze is that the signature on the card clearly does not resemble either that of
Murphy (General Counsel's Exhibit No 3(nn)) nor that of Reed (General Counsel's
Exhibit No. 3(00)). Under these circumstances, I would certainly reject Daniel's card
as constituting an element of the proof of majority
80154 NLRB 143
"As a result of this finding I do not reach Respondent's further defense that it had a
good-faith doubt of such asserted majority status. However, for the benefit of any review-
ing authority, I would state that I would reject such defense in view of the extensive
campaign waged by Respondent to dissipate the Union's strength
92 In view of this finding I deem it unnecessary to resolve Respondent's other conten-
tion that Harris threatened some six employees (Herman Holland, Willie Wilson, Shelley
Ward, L. P Daniels, Willie Lee Jackson, and Green West) who testified, in substance,
that a strong inducement to their signing a card was Harris' admonition that unless they
did so they would be out of a job when the Union came in. Although Harris generally
denied making any threats in connection with the signing of cards, he was not called as as
rebuttal witness to explain or deny this specific testimony of Respondent's witnesses,
although: (1) another rebuttal witness was called to explain the circumstances of the
signing of one card, and (2) I had previously stated on the record my concern respecting
proper identification and probative value of the proffered cards Assuming the credibility
of the six (which I do in the absence of specific refutation), the issue remains whether
such remarks by an employee organizer could reasonably be held to constitute a threat or
coercion sufficient to invalidate the card. Board law does not appear altogether clear on
this point. Compare Sherry Manufacturing Company, Inc, 128 NLRB 739, 755 (finding
no threat) with Lerner Shops of Alabama, Inc., and Lerner Stores Corporation, 91 NLRB
151 (finding violation based upon threat of present loss of employment), distinguishing
Tennessee Coach Company, 84 NLRB 703, where the remarks "constituted mere predic-
217-919-66-vol. 156-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Report on objections
As previously noted, the Board, on December 21, 1964, ordered that a hearing
be held to resolve the issues raised by union objections Nos. 1, 2, 3, and 5, to conduct
affecting the results of the election. These objections, the precise language of which
is set forth in the footnote 63 alleged, in substance, that the employer by wrongful
and unlawful conduct consisting of threats of economic reprisal and promise of bene-
fits, plus a change in policy respecting granting of loans, created an atmosphere of
fear and coercion which rendered the holding of a free election impossible.
In this decision, I have hereinabove already made findings that between the date
of the filing of the petition and the holding of the election,64 Respondent, through
its officers and supervisors, engaged in a wide variety of acts and conduct, including
threats of economic reprisal and promises of benefit, in order to dissuade its employ-
ees from becoming or remaining members of the Union, and to persuade them to
vote against the Union in the oncoming election It would unduly burden and
elongate this already lengthy opinion to restate such findings here.
Like the Regional Director, I find that by engaging in such coercive conduct,
Respondent went beyond the permissible scope of electioneering during the critical
period, thereby substantially interfering with the right of the employees to a free
and untrammeled choice in the election. Accordingly, I will recommend that the
election of June 26, 1964, be set aside and that this matter be remanded to the
Regional Director for the holding of another election.65
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section I, above, occurring in connection
with the interstate operations of Respondent, have a close, initmate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow thereof.
III. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
tions of the effect of an authorized union-shop agreement." The remarks In the instant
case would seem to be more In the nature of a prediction, although the effect should
be less coercive since there would be no possibility of a union-security agreement in
Florida (see amendment to section XII of Florida constitution, approved November 7,
1944). The coercive effect would also appear to be diminished where the remarks are
made by a fellow employee rather than a union organizer as in West Coast Luggage Co.,
105 NLRB 414, 418, or by a supervisor as in Robbins Tire & Rubber Co., Inc., 72 NLRB
157. Had I not been able to resolve the Issue on other grounds, hereinabove discussed,
I would hold, based upon the above precedents, that the remarks attributed to Harris
were not sufficiently coercive in the circumstances to warrant invalidating the cards.
63These objections read:
"1. On or about June 25, 1964, the Company, through its officials, agents and
employees, solicited their employees to vote against the Union and promised if they
vote against the Union, Mr. Cline (owner of the Company) could be talked into giving
the employees 'a little more money.'
"2. On or about June 22, 1964, the Company, through its officials, agents, and
employees, threatened an employee with loss of job and income.
"3. On or about June 25, 1964, the Company, through its officials, agents and em-
ployees, promised certain other employees a 20t per hour increase in wages if they
would vote for the Company.
4 L • R r t t
"5 On or about June 19, 1964, the Company unilaterally changed their policy
regarding the making of small loans to their employees and collecting such loans by
deducting $5.00 per week from their paychecks."
64 The critical period for considering alleged objectionable conduct, The Ideal Electric
and Manufacturing Company, 134 NLRB 1275, 1278.
e5 In view of the massive evidence of restraint and coercion upon which I have based
the foregoing finding and recommendation, I, like the Regional Director, deem it unneces-
sary to determine, with respect to objection No. 5, whether the alleged change of company
policy regarding making and collecting of loans constituted sufficient interference to
warrant setting the election aside.
DUBOIS FENCE & GARDEN CO., INC. 7.029
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment, and the terms and conditions of employment of L. J. Gainer,
George Simmons, Coetta Burney, Alfonso Graham, Amos Whitfield, and Leslie
Harris, I shall recommend that Respondent offer them immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges. I shall also recommend that Respondent
make the above-named employees, and Manson Moore, Jr., who as heretofore found
was discriminatorily discharged but later resumed employment with the Company,
and A. J. Anderson, who also has resumed employment with the Company, whole
for any loss of earnings they suffered by reason of the discrimination against them,
by paying to each a sum of money equal to the amount he (or she) would have
earned from the date of the discrimination against them until such discrimination
has been fully eradicated, less his (or her) net earnings during the period of such
discrimination. Backpay with interest at the rate of 6 percent per annum shall be
computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure Respondent's employees of their
full rights guaranteed by the Act, I shall recommend that Respondent cease and
desist in any manner from interfering with, restraining, and coercing its employees
in the exercise of their rights of self-organization.
Having found that the evidence sustained union objections Nos. 1, 2, and 3, to
conduct affecting the results of the election held on June 26, 1964, in Case No.
12-RC-1947, I shall recommend that said election be set aside, and that that case
be remanded to the Regional Director for Region 12 to conduct another election
at such time as he deems appropriate.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. DuBois Fence & Garden Co., Inc., Respondent herein, is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By engaging in certain described conduct referred to heremabove in section I
hereof, Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed to them by Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4 By engaging in the conduct referred to section I, C and D, above, Respondent
discriminated against employees in regard to their hire and tenure of employment,
and terms and conditions thereof, in order to discourage membership in the Union,
and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Except to the extent that violations of the Act have been specifically found,
as above set forth, the General Counsel has failed to establish by a preponderance
of the evidence the remaining allegations of the complaint herein, and it will be
recommended that said complaint be, to that extent, dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
record as a whole, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that the Respondent, DuBois Fence & Garden Co.,
Inc , its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees as to their membership in or activities on
behalf of International Association of Machinists, AFL-CIO, or any other labor
organization.
(b) Threatening its employees that it would close its plant should they select the
Union as their collective-bargaining representative.
(c) Threatening its employees that they would lose hours of work, or the privilege
to transfer from one job to another, or the privilege to borrow money from the
Company should they select the Union as their collective-bargaining representative.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Promising employees money or any other thing of value if they would refrain
from becoming or remaining members of the Union, or rendering support to the
Union.
(e) Engaging in conduct which can reasonably be calculated to convey to its
employees the impression that their union activities are under surveillance.
(f) Soliciting and encouraging employees to withhold information from the
Board and its agents, or give false information to the Board and its agents in an
attempt to impede the processes of the Board and thus deprive its employees of a
full and fair hearing as to whether Respondent was actually depriving its employees
of their rights under the Act.
(g) Threatening its employees that there would be layoffs or other economic
reprisals if they selected the Union as their collective-bargaining representative.
(h) Discouraging membership in the Union, or any other labor organization of
its employees, by discriminatorily discharging, or changing any terms or conditions
of employment, or in any other manner discriminating against any employee in
regard to hire, tenure, or any term or condition of employment.
(i) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist labor orga-
nizations, 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 and all such activities.
2 Take the following affirmative action which I find will effectuate the policies
of the Act.
(a) Offer to L. J. Gainer, George Simmons, Coetta Burney, Alfonso Graham,
Amos Whitfield, and Leslie Harris immediate, full, and unconditional reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges.
(b) 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 Service Act and the Univerasl Military Training and
Service Act, as amended, after discharge from the Armed Forces.
(c) Make the above-named employees, Manson Moore, Jr., and A. J. Anderson,
whole for any loss of earnings they may have suffered severally, in the manner set
forth in the section herein entitled "The Remedy "
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other reports relevant and necessary to
determine or compute the amount of backpay due, as herein provided.
(e) Post at its plant in Lake City, Florida, copies of the attached notice marked
"Appendix " 66 Copies of said notice, to be furnished by the Regional Director for
Region 12 (Tampa, Florida), shall, after having been signed by an authorized repre-
sentative of Respondent, be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the said Regional Director for Region 12, Tampa, Florida, in writing,
within 10 days from the date hereof, what steps Respondent has taken to comply
herewith.°7
It is also recommended that the election in Case No. 12-RC-1947 be set aside,
and that that case be remanded to the Regional Director for Region 12 to conduct
another election at such time as he deems appropriate.
It is also recommended that the complaint be dismissed insofar as it alleges unfair
labor practices not specifically found hereinabove.
sa In the event this Recommended Order is adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals the words "a Decree of the United States Court
of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
87 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
DUBOIS FENCE & GARDEN CO., INC.
APPENDIX
NOTICE TO ALL EMPLOYEES
1031
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Association of Machin-
ists, AFL-CIO, or in any other labor organization of our employees, by dis-
charging or in any other manner discriminating against employees in regard
to hire and tenure of employment or any term or condition of employment.
WE WILL NOT coercively interrogate the employees as to their membership
in or activities on behalf of International Association of Machinists, AFL-CIO,
or any other labor organization.
WE WILL NOT threaten our employees that we will close the plant should they
select International Association of Machinists, AFL-CIO, or any other labor
organization, as their collective-bargaining representative.
WE WILL NOT threaten our employees that they will lose hours of work, or
the privilege to transfer from one job to another, or the privilege to borrow
money from the Company should they select International Association of
Machinists, AFL-CIO, or any other labor organization, as their collective-
bargaining representative.
WE WILL NOT promise employees money or any other thing of value if they
refrain from becoming or remaining members of International Association of
Machinists, AFL-CIO, or any other labor organization.
WE WILL NOT convey to our employees the impression that their union
activities are under surveillance, or tell them that we will know how they vote
in any election conducted by the National Labor Relations Board.
WE WILL NOT direct employees to withhold information or to testify falsely
before agents of the National Labor Relations Board.
WE WILL NOT threaten our employees with layoffs or other economic reprisals
if they select International Association of Machinists, AFL-CIO, or any other
labor organization, as their collective-bargaining representative.
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 a labor
organization, to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
WE WILL offer to L. J. Gainer, George Simmons, Coetta Burney, Alfonso
Graham, Amos Whitfield, and Lesile Harris immediate, full, and unconditional
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them whole
for any loss they may have suffered as the result of discrimination against them.
WE WILL make whole Manson Moore, Jr., and A. J. Anderson for any loss
of earnings they may have suffered as a result of the discrimination against
them.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named Union or any other labor organization.
DuBois FENCE & GARDEN COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify L. J. Gainer, George Simmons, Coetta Burney, Alfonso
Graham, Amos Whitfield, and Leslie Harris if presently serving in the Armed Forces
of the United States of his (or her) right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This 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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
706, Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No.
228-7711.