English Mica Co.

National Labor Relations Board - Board Decisions

Dec 18, 1950

92 N.L.R.B. 766 (N.L.R.B. 1950)

In the Matter of ENGLISH MICA COMPANY and UNITED - STONE AND
ALLIED PRODUCTS WORKERS OF AMERICA , C. I. O.
Case No. 34-CA-168.-Decided December 18,1950
DECISION AND ORDER
On September 7, 1950, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto.' Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this proceeding to a three-member panel [Members Houston, Mur-
dock, and Styles].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, except as noted below?
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, English Mica
' The Trial Examiner also found that the Respondent had not violated Section 8 (a) (4)
by discharging Leroy E. Fox , George H. Young , Jr., and Harold Thomas. As no excep-
tion has been taken to this finding , we shall dismiss this allegation of the complaint.
2 The Trial Examiner found that in a conversation between Superintendent Gunter and
Foreman Duncan , Gunter had suggested to Duncan that he get a replacement for Fox,
one of the dischargees , and that Duncan had refused to do so. In the transcript of the
record , this conversation took place between Duncan and Charlie Verner, who is not
identified nor referred to anywhere else in the record . Under these circumstances, we
have not , in finding that the Respondent 's discharge of Fox was in violation of Section
8 (a) (3), considered this conversation.
92 NLRB No. 118.
766
ENGLISH MICA COMPANY 767
Company, Spruce Pine, North Carolina, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their union activities
and affiliations;
(b) Threatening to discontinue loans to its employees or to with-'
hold other benefits unless they cease their activities on behalf of
United Stone and Allied Products Workers of America, C. I. O.,'or
of any other labor organization.;
(c) Promising to increase the working hours of its employees or
to provide other benefits if they cease their activities on behalf of
United Stone and Allied Products Workers of America, C. I. O'., or
any other labor organization ;
(d) Discouraging membership in United Stone and Allied Prod-
ucts Workers of America, C. I. 0., or any other labor organization of
its employees, by discriminating in regard to the hire and tenure of
their employment or any term or condition of employment;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist United Stone and Allied
Products Workers of America, C. 1. 0., or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that ' such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action which we find will effec-
tuate the policies of the Act :
(a) Offer to Leroy E. Fox, George H. Young, Jr., Harold Thomas,
and Lane Ledford immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges previously enjoyed;
(b) Make whole Leroy E. Fox, George H. Young, Jr., Harold
Thomas, and Lane Ledford for any loss of pay they may have suf-
fered by reason of the Respondent's discrimination against them, in
accordance with the recommendations set forth in the Intermediate
Report attached hereto;,
(c) Post at each of its plants and mines in Spruce Pine, North
Carolina, copies of the notice attached hereto marked Appendix A.3
a In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall -be inserted before the words , "A Decision and Order," the words , "A Decree
of the United States Court of Appeals Enforcing."
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by the. Regional Director for
the Fifth Region, shall, after being signed by the Respondent's repre-
sentative, be posted by the Respondent and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
. IT IS FURTHER ORDERED that the. complaint, insofar as it alleges that
the Respondent discharged Leroy E. Fox, George H. Young, Jr., and
Harold Thomas because they gave testimony under the Act in English
Mica Company, 34-RC-154, in violation of Section 8 (a) (4) of the
Act, be, and it hereby is, dismissed.
. APPENDIX A ,
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
activities and affiliations.
WE WILL NOT threaten to discontinue loans to our employees or
to withhold other benefits unless they cease their activities on be-
half Of UNION STONE AND ALLIED PRODUCTS WORKERS OF AMERICA,
C. 1. 0., or any other labor organization.
WE WILL NOT promise to increase the working hours of our em-
ployees or to provide other benefits if they cease their activities
on behalf of UNITED STONE AND ALLIED PRODUCTS WORKERS OF
AMERICA, C. I. O.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist UNITED STONE AND
ALLIED PRODUCTS WORKERS OF AMERICA, C. I. 0., or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities except to
the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
ENGLISH MICA COMPANY 769
WE WILL NOT discourage membership in UNITED STONE AND
ALLIED PRODUCTS WORKERS OF AMERICA, C. 1. 0., or any other
labor organization of our employees, by discriminating in any
manner with regard to their hire and tenure of employment, or
any term or condition of employment.
WE WILL OFFER to Leroy E. Fox, George H. Young, Jr., Harold
Thomas, and Lane Ledford immediate and full reinstatement to
their former or substantially equivalent positions, without prej-
udice to their seniority and other rights and privileges previously
enjoyed.
WE WILL MAKE WHOLE Leroy E. Fox, George H. Young, Jr.,
Harold Thomas, and Lane Ledford for any loss of pay suffered
by them by reason of the' discrimination practiced against them.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union or any other labor organ-
ization except to the extent that this right may be affected by an agree-
ment in conformity with Section 8 (a) (3) of the amended Act.
ENGLISH MICA COMPANY,
Employer.
Dated --------------------- By -----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the .date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE) REPORT AND RECOMMENDED ORDER
-Mr. Charles B. Slaughter, for the General Counsel.
Mr. I. Walter Fisher, of Atlanta, Ga., and Mr. John C. McBee, of Spruce, Pine,
N. C., for the Respondent.
Mr. Sam H. Scott, of Winston-Salem, N. C., and Mr. L. A. Rumley, of Greensboro,
N. C., for the Union.
STATEMENT OF THE CASE
Upon a charge filed September 9, 1949, a first amended charge filed October 17,
3.949, and a second amended charge filed May 12, 1950, by United Stone and Allied
Products Workers of America, C. I. 0., herein called the Union, the General
Counsel of the National Labor Relations Board, herein called the General Counsel
and the Board, by the Regional Director of the Fifth Region (Baltimore, Mary-
land ), issued his complaint dated May 9, 1950 , against English Mica Company,
herein called Respondent , alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), 8 (a) (3), 8 (a) (4), and Section 2 (6) and (7) of the National
Labor Relations Act as amended, 61 Stat. 136, herein called the Act. Copies of
the charge , amended charges , and the complaint , together with notice of hearing,
were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleged, in substance,
that from on and after September 2, 1949,,Respondent interrogated its employees
concerning their' union activities , made promises of benefits and threats of
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprisal, kept its employees under surveillance respecting their union activities,
threatened to cease making loans to employees, and discharged four named em-
ployees because of their union activities and because they gave testimony under
the Act.
In its answer filed May 17, 1950, Respondent admitted certain jurisdictional
facts asserted in the complaint, but denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held on July 25 through 28, 1950, at Spruce
Pine, North Carolina, before Alba B. Martin, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel and the
Respondent were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties.
At the beginning of the hearing the General Counsel moved to withdraw the
allegation that Lane Ledford, one of the discharged employees, was discharged
because he gave testimony under the Act. The motion was granted. The Gen-
eral Counsel moved also that the Trial Examiner take judicial notice that on
October 7, 1949, the Board held that Respondent was engaged in commerce within
the meaning of the Act. Such judicial notice is hereby taken.' Respondent's
motion to separate the witnesses was granted , with the proviso that the dis-
charged employees involved in the case and C. S. Gunter, Respondent's superin-
tendent, could remain. During the hearing the General Counsel moved to amend
the complaint by adding an allegation that Respondent violated Section 8 (a) (1)
of the Act by "attempting to tamper with and question employees concerning the
testimony such employees would give at the hearing" in this case. The motion
was granted . At the end of the hearing Respondent moved to dismiss the com-
plaint for lack of proof. For the reasons given below such motion is hereby
denied. The General Counsel's motion to conform the pleadings to the, proof
was granted. A brief was received from Respondent.
Upon the entire record in the case and from observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
English Mica Company, a North Carolina corporation with principal office
and place of business in Spruce Pine, North Carolina, is engaged in the manufac-
ture and sale of scrap mica. During the last 12 months Respondent purchased
scrap mica valued at approximately $100,000, of which less than 5 percent was
purchased outside the State of North Carolina. During the same period Respond-
ent sold wet ground mica valued at approximately $400,000, of which approx-
imately 95 percent was sold and shipped to points outside the State of North
Carolina. It is concluded that Respondent is, engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Stone and Allied Products Workers of America, C. I. 0., is a labor organ-
ization admitting to membership employees of Respondent.
' The Board so held in Case No. 34-RC-154.
ENGLISH MICA COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
1. Background
771
Efforts to organize Respondent's approximately 50 employees who work in 4
plants and a mine, all located about one-fourth mile from one another in Spruce
Pine, North Carolina, began in early June 1949. The Union held at least 2 meet-
ings for the employees several weeks apart, at dates not clear in the record,
probably July. .One of these was attended by Roscoe Duncan, foreman of one
of the plants, at the request of his brother, an employee. Charles S. Gunter, Re-
spondent's general superintendent and also its vice president, secretary, and gen-
eral manager, testified that he first heard the Union was trying'to organize his
employees "... in the spring of 1949 or early summer ; I have no way of know-
ing when I first heard it; it was general knowledge." On July 8 the Union wrote
Respondent claiming to represent a majority of its employees ; July 12 the Subre-
gional Office wrote Respondent that the Union had filed a petition claiming to
represent a majority in an appropriate unit consisting of the 4 plants. Both let-
ters were ' received. The representation case hearing was originally set for
August 30 at Charlotte, North Carolina. August 19 the Board's Regional Direc-
tor changed the place to Asheville, North Carolina. August 23 he postponed the
hearing to September 2, and changed the place to Spruce Pine, North Carolina.
Following the Board's Decision and Direction of Election : dated October 7, an
election was held November 1 in which the Union won 25 votes, 23 votes were cast
against the Union, and there were 10 challenges. The 4 employees involved in
this case were among the challenges. By its Supplemental Decision and Direction
of January 16, 1950, the Board held that no action be taken as to these 4 chal-
lenges pending the disposition of this case.
2. Interrogation of employees
Plant 2 was closed down for repairs most of the time from July 7 until August
4, 1949. During this period Leroy Fox , an employee in Plant 2 . went to Gunter's
home to . get a check due him. Fox , a credible witness , testili d that when he
asked for his check Superintendent Gunter replied that he thought the "Union
was paying you boys." Fox replied that the Union was not paying him "a damn
thing." The following conversation then took place, according to Fox:
He said well , said have you joined the Union; and I told him -that I thought
that a man should not rush into anything, and that he should study anything
over very careful before he made any move ; and he asked me again, and he
said I have to know definitely where you stand on this matter , if you have
joined or not ; and ' I said well , I think anybody ought to do as they please
about anything like that ; and he said well, Lee, said if , said the only way I
will work a Union man is to be made to work him ; and he said you know
if I didn't want to work a man that was working for me he would not work
long ; and then I asked him when the mill would start back up ; and he said
it may be New Years , said you might just as well hunt you a job.
Gunter, whose memory was very faulty, testified that he had no remembrance
of the conversation . He said, "I don't even remember Lee coming for a check, but
I won't say he didn't come ; he may have." Asked if he recalled telling Fox,
"I thought the Union was paying you boys," Gunter replied, "I don't even re-
2 34-RC-154.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member that; I won't say I didn't say it, but I don't remember it." Asked if he
ever asked Lee Fox if he joined the Union, Gunter replied, "I don't remember
ever discussing it with him . . . I certainly never ask him that ; if I have I have
no recollection of it. I have never asked any of the boys, come right out and ask
them if they joined the Union, for I didn't figure it was any of my business."
His only unqualified denial was that he did not tell Fox that he would not work
a union man. He added that "I was doing it, I was having to do it." Asked
for an explanation for his language "having to do it" he replied, "Well, I have
to run, and they said they were Union men, and I can't fire them ; I have no legal
grounds to fire them."
Lane Ledford testified that in November 1949 Gunter called him aside when
he was working and the following conversation took place:
. .. he asked me, he said Lane, we want to know how you voted in the elec-
tion, he said they are in the office with the challenged votes and said we will
soon find out, and said we would like to know, it would save us some trouble
if we know how you voted, and he asked me like this, on his fingers, did you
vote over here on the right where it says "Yes" or did you vote over here on
the left where it says "No"; and I said I voted over here on the right where
it says "Yes" ... He said that is all he wanted to know, and went back into
the office.
Following is Gunter's version of this conversation:
My recollection of that is that me and Lane had-I said something to Lane
about them challenging four votes and that probably that would be the only
four that we would ever know how they did vote, or something along that
line, I can't tell you the exact words .. .
He testified further that he did not remember whether Ledford told him how he
voted. He did not deny any of Ledford's testimony.
Fox and Ledford impressed me as credible witnesses. For reasons given below,
Gunter did not. It is found that Gunter interrogated Fox and Ledford sub-
stantially as related by them and that by such interrogations Respondent inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act 8
3. Threats to discontinue "accommodations" to employees
Two of Respondent's foremen testified in effect that Gunter told them to tell
the employees that unless they rejected the Union Gunter and the Company would
cease loaning money to them. Theretofore for many years the Company and
Gunter personally had pursued a liberal policy of granting small loans to em-
ployees and getting reimbursed through payroll deductions. Also Gunter en-
dorsed notes'so that employees could borrow money at the local bank, and the
employees bought coal from Respondent and paid for it through payroll deduc-
tions. These were called "accommodations."
After Respondent knew of the Union's organization efforts Jim Duncan,
foreman of Plant 2, told the employees that all accommodations would be taken
away if the Union came in. Duncan himself testified on direct examination as
Respondent's witness that'he,told his employees that loans would be cut off
unless they forgot the union business. He testified, "Mr. Gunter came down
there one morning and told me to tell the men that if they went through with
8 Standard-Coosa-Thatcher Company, 85 NLRB 1358; Empire Pencil Company, Division'
of Hassenfeld Bros., Inc., 86 NLRB 1187.
ENGLISH MICA COMPANY 773
what they started, to tell the employees that they would not-they would have
to look to them for help he had been giving, loans and such as that." He testified
further that he told this to the employees under him, and several employees gave
corroborating testimony.
George H. Young, Sr., foreman at Plant 1, testifying as a witness for'the
General Counsel, stated that after Gunter "found out the Union was around"
Gunter told Young that he was stopping his part of making loans to employees
because of the Union ; "he was not loaning them any more because of that."
Young relayed this information to at least two employees who worked under
him.
The day Gunter received the Union's letter claiming to represent a majority
of ' his employees-shortly after July 8, 1949-he told an employee, Harold
Thomas, according to the latter's testimony, that if Thomas had joined the
Union he did not need to come to Gunter or to the Company for any more
accommodations for he would get none.
Gunter denied telling any employees that the loans would be discontinued or
authorizing anybody to discontinue the loans for any reason other than that the
prospective borrower was a poor credit risk. He did not deny, however, that he
told Jim Duncan to tell the employees that the loans would be discontinued
and he did not deny the testimony related above of George H. Young, Sr.
It is found that the above statements by Jim Duncan and George H. Young,
Sr., foremen, to the employees, and the above statement attributed to Gunter
by Harold Thomas, were made substantially as related by them ; that such state-
ments constituted threats to the employees ; that by such statements Respondent
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in, Section 7 of the Act, in violation of Section 8 (a) (1) of
the Act.
Respondent introduced a list of all loans and note endorsements except small
loans for which no entry was made on the books, from early 1949 until the end
of that year. This list showed that a smaller number of loans and endorsements
were made after July 8 (when the Union wrote Respondent claiming a majority)
and during August than at any other time. The following number of loans or
endorsements were given: May-20, June-26, July-19 (after July 8-8), Au-
gust-6, September-14, October-37, November-23, December-20. During
July and August occurred almost all of the plant shutdowns for repairs which
came during the period May to December 1949: Plant 1 was down for repairs the
second and third weeks in July ; Plant 2 worked only 48 hours in 4 weeks ; Plant
3 was completely down from July 15 to September 1; Plant 4 was down for
repairs for about 3 days late in August. Although no figures as to numbers of
requests for loans and endorsements were introduced, it would be reasonable
to assume that during this period of heavy shutdowns the employees requested at
least as many loans and endorsements as when they were working, if not more.
An equally valid assumption, however, would be that fewer employees applied
for loans after Foremen Jim Duncan and Young told them that loans were being
discontinued because of the Union. In view of these conflicting assumptions, and
the record being silent as to whether more employees applied for loans than
were given them during this period, no finding is made that any employees who
requested loans were denied them.
4. Promises of increased working. hours to defeat Union
A number of employees testified that after the Union began organizing Re-
spondent cut its workweek from its accustomed 6 days-48 hours, to 5 days-40
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, and that thereafter several foremen stated to them, in effect, that if the
employees would forget the Union Respondent would return to a 6-day week.
As to the number of hours the plants worked, the oral testimony of Gunter
and Roscoe Duncan was considerably at variance with the facts as taken from
the, Company's books and submitted as a written exhibit. Gunter testified that
during 1949 Plant 4 worked 48 hours "practically" all the time, Plant 1 worked
"all the time on a six day solid week, unless we were heavily stocked or business.
slack," Plant 2 worked "most of the time on a five day week" because ". . . we
have been able to fill.our orders . . ." during that time. Roscoe Duncan testi-.
fied on direct examination that during the period in question Plant 4 "run six
days pretty well all the time" ; on cross-examination he confessed he did not
remember whether it ran 40 or 48 hours during July, August, October, and No-
vember and was "pretty sure" it ran 48 hours during September. He sum-
marized that the number .of hours worked was during this period and always
had been "up and down."
The facts were, as revealed by Respondent's books, that Plant 1 worked on a
48-hour basis each week from April 29, 1949, until July 7, 1949, was down for
repairs the following 2 weeks and worked only 8 hours, the following week
worked 32 hours, and beginning July 29, 1949, worked on a 40-hour basis each
week until September 15, 1949. The week beginning September 16 it worked
48 hours, the next week 40 hours, the next 32, and from October 7 until the end
of the year worked 48 hours each week. From April 29 until June 30, 1949,
Plant 2 worked 48 hours each week except 2 when it worked 40 hours and 32
hours.. The following week it worked 40 hours. It was down for repairs most
of the time from July 8 until August 4. From August 5 until September 29 it
worked 40 hours each week except 2 when it worked 32 hours. Plant 4 worked
48 hours each week from April 29 until July 28, 1949. The next week it worked
40 hours. The next week it was partially down for repairs ; the next it worked
32 hours. The next 2 weeks it worked 40 hours each week. From September 1
until the end of the year it worked each week on a 48-hour basis.
It is concluded from the above that the memories of Gunter and Roscoe Duncan
were faulty, and that during the period of union activity Respondent worked
its plants fewer hours per week than previously. Although these facts cast
doubt upon Respondent's motives it is not concluded that the fewer hours were
worked because of the Union or in an effort to forestall it. This result is reached
because the record is completely silent as to Respondent's orders and sales
during this period and it is impossible to reach a conclusion as to Respondent's
motive in the absence of such data.
The undenied and credited testimony of Harold Thomas and Roy Duncan was
that Roscoe Duncan told groups of employees at Plant 4 numerous times after
they started working a 40-hour week that if the employees would forget the
Union, the plant would return to a 48-hour week. Substantially the same re-
marks were attributed to Jim Duncan by Leroy Fox and Lane Ledford. Jim
Duncan did not deny making such statements but stated that he did not remember
making them.
It is found that Roscoe Duncan and Jim Duncan made the statements at-
tributed to them by the four employees who worked under them, that such
statements constituted promises of benefit, and that such promises of benefit
were made in an effort to get the employees to withdraw from the Union. By
such acts Respondent interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act, and thereby engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
ENGLISH MICA COMPANY 775
B. The discharges
George H. Young, Sr., who served as foreman of Respondent's largest plant
for some 24 years and left in May 1950 on his doctor's orders because he has
silicosis, testified that "after the Union was organized up there Gunter told
him that sooner or later "he was going to get shed of . . . the men that were
working there that joined up with the Union." By way of warning Young relayed
this word on to his son, Jack Young, who worked under his father. Gunter
did not deny this statement attributed to him. He stated that he had had many
conversations with Young but that he did not remember any such statement
as that.
Young testified further that on September 2, 1949, Gunter told him that he
was going to fire the men who went to the Board representation hearing that
day. Gunter did not deny this statement.
Young impressed me as an honest witness with a memory far superior to
Gunter's concerning the statements and events about which he was testifying.
Further, by virtue of his long tenure as a foreman under Gunter, he was
obviously in a position to' enjoy Gunter's confidence. It is found that Gunter
made the statements attributed to him by Young and that the sentiments Gunter
expressed truly indicated his intent.
On September 3, 1949, Gunter discharged the 3 employees who had been the
only employees attending the hearing the previous day from the shift then on
duty. Each of these employees worked in a different plant and was the Union's
organizing committee of one in his plant. Together the 3 of them constituted
the entire organizing committee. During the organizing period each of them
had urged other employees to join the Union and had emphasized the reasons
why they should. Fox, 1 of the 3, had given a speech in favor of the Union
at a union meeting attended by some 50 working men including many, if not
most, of Respondent's employees.
The three employees attended the hearing at the request of the union organizer.
None of them were subpoenaed. None testified, although they were there for
that purpose.
Lane Ledford, one of the discharged employees named in the complaint, testi-
fied that around the first of July 1949, his foreman, James Duncan, told a
number of employees assembled together that Gunter knew which of the
employees had joined the Union and which had not. Duncan, who testified, did
not deny this statement. It is found that he made it. Gunter denied that he
knew which employees were members of the Union and which were not. This
denial is not credited in the light of all the circumstances in the case.
Gunter testified that the three employees, Fox, Jack Young, and Thomas, were
discharged because they left their jobs without permission. At the beginning
of his testimony Gunter was asked to relate the events which led up to their
discharge. This was his reply :
Well, of course, it was rumored around-I was not informed officially-
they rumored around that someone had organized a Union here; and we
had never had anything like that in this country before, and I was not, I
knew the boys had a right to organize and I didn't object, I didn't try to
prevent it, but I didn't know that I still was not boss over my operations
that I carried on directly and indirectly for forty years ; and, of course,
when those boys went to walking out without permission, why I thought I
had a perfect right, unless they was properly subpoened.
The question arises as to whether the discharge of these three employees
"for leaving their jobs without permission" was the real reason for their dis-
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge or whether it was a mere pretext for getting rid of the three union
leaders in Respondent's employ. This raises the question as to whether Re-
spondent made it a practice to discharge employees who left on occasion without
permission. _
Leroy Fox, a credible witness, with about 4 years' tenure in all, testified that
if he knew a day in advance that he wanted to be off the following day, he
would "ask one of the men that could do my job if he would work for me,
and if he said all right, why I felt free to go ahead and be off and he came
in and worked in my place." He stated that he did not always ask Gunter's
permission or his foreman's and that no one ever "called him down" or threat-
ened to discharge him for the failure.
Harold Thomas, who worked for Respondent for some 8 years, testified cred-
ibly that it was customary for the employees to leave their work on occasion
to run a personal errand, that his customary practice was to "ask somebody
to watch the boiler' until I got back," that sometimes he asked permission
but that such was not required, that sometimes Roscoe Duncan, the foreman,
watched the boiler for him and sometimes the other employees did. He stated
further that this was his practice and that of the other employees regardless
of the purpose for which they were leaving the plant, that "we always done our
work." This was Thomas' practice and despite it neither he nor his work were
ever adversely criticized during his entire 8 years' tenure, according to his
undenied testimony.
. One of Respondent's witnesses who impressed me as an honest witness was
Claude Autrey, a former employee. In answer to questions by the Trial Ex-
aminer as to what arrangements he made to get off he recalled that in one
instance when he had not had supper he "told" his foreman, Ray Gunter, that
he was leaving to get his supper. Thus he did not ask permission, he "told"
the foreman.
Foreman Jim Duncan testified concerning his authority that although Gunter
never gave him authority to let the men leave temporarily or to go downtown
to the bank, nevertheless it was his regular practice to let them do so, and
that sometimes he himself would help do their job in their absence. He testified
that he had authority to excuse the employees for anything urgent, but that if
he was not certain the reason advanced was a good reason for getting off he
would consult with Gunter about it.
Foreman Roscoe Duncan, son of Jim Duncan, testified that he had authority
to let a man off if the man had "a lawful excuse, a good excuse" such as sick-
ness or business at the bank, and that in such cases he would watch the man's
job himself "or maybe some of the other boys would step out there and watch
it a few minutes." s
In his testimony Gunter allowed that the foremen may have permitted em-
ployees to leave the plant on a personal errand such as going to the bank, but
stated that he had never authorized the foremen to allow such practice. He
testified also that from time to time working rules have been posted, but that
no rule was ever posted to the effect that permission must be obtained from
the foreman before an employee leaves the plant. No meetings of employees
were ever held to inform them of the working rules.
Thus is presented a picture of a group of working men and their foremen who
cooperated one with another to keep the work moving along when one of their
Thomas was a fireman.
This testimony was a contradiction of other testimony by Roscoe Duncan to the effect
that it would be impossible for a man to watch the boiler and attend his own job in the
plant, 50 to 60 feet away.
ENGLISH MICA COMPANY 777
number wanted to leave temporarily on a personal errand. In such matters,
such as going out to the bank or for food or because of illness, permission of the
foremen was so assumed by the employees that the latter undertook only to keep
the foremen informed as to their leaving. Such was the working esprit among
them that to ask formal permission to leave the plant frequently did not occur
to the men. Sometimes it did, but more frequently it did not. No single in-
stance of discharge "for leaving their jobs without permission" appears in the
record except the three involved in this case, although a number of other inci-
dents were inquired into.
That the above is a correct account of the prevailing spirit and practice at the
time of the discharges about to be studied is conclusively indicated by the fact
that during all of the second and third shifts in two of the plants and during
most of the second and all the third shifts in the other plant involved, there was
no foreman on duty and the plants operated with no one in authority present.
The "pusher" had no authority, according to Gunter, and was there simply to
assist in minor breakdowns and be of help wherever he could. Thus the em-
ployees were virtually on their own during these shifts except for Gunter's
daily visit or twos and perforce they had to police their own attendance. Once
when an employee, Floyd Hollifield, was absent "without permision" he him-
self found a substitute to do his work. The next day he told Gunter he left to
take his wife to the doctor and Gunter did not discharge him for being absent
without permission.
It is concluded that a loose arrangement prevailed as to attendance of the
employees every hour and minute of their working time, that they left on occa-
sion for personal errands having first asked some fellow employee or the fore-
man to take care of their job, that they did not always ask formal "permission"
of the foreman but tended to assume his permission which was usually given,
and that it was not customary to discharge employees for this practice. Into
this situation came the discharges of the three employees, considered in detail
below. Considered below also is the discharge of Lane Ledford.
1. Leroy E. Fox
Fox worked for Respondent for several years prior to his discharge Septem-
ber 3, 1949. At the time of his discharge he was a boiler fireman on the first
shift at Plant 2. He joined the Union June 21, 1949, some 3 weeks after the
organizing campaign began, and served as the Union's committeeman in his
plant. In July Gunter interrogated him concerning his union membership, as
related above.
Early in August 1949, Plant 2 reopened after a shutdown of several weeks
for repairs. The custom was that after a shutdown the Company notified the
employees of the reopening date. Fox was not so notified, but learned of the
reopening accidentally a day or so after it had occurred. When the next day he
returned to work Fox asked Foreman Jim Duncan why Duncan had not notified
him of the reopening. Duncan replied, "You could not hear me holler." Duncan
told Fox, also, that Gunter had suggested to Duncan getting a man in Fox's
place and Duncan had replied that Fox had given good service and that if
Gunter wanted to replace him he should do it himself because Duncan did not
want to let Fox out. This conversation took place in the presence of Roy
Duncan. Gunter, Jim Duncan, and Roy Duncan all testified and none of them
denied this conversation. It is found that it and the Gunter-Duncan conversa-
° Gunter stated that he visited each plant several times daily but it was not shown during
what shifts. When an employee wished to leave in an emergency he did not always await
Gunter's uncertain rearrival.
929979-51-vol. 92 51
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion took place substantially as related by Fox, and that it indicated Gunter's
desire to get rid of Fox.
About the middle of August 1949, Jim Duncan, their foreman, while dis-
cussing other matters concerning the Union with Fox and Lane Ledford, told
them that they had joined the Union. Duncan testified but did not deny this
,statement . It is found that as of the middle of August, at least, Duncan knew
that Fox and Ledford were members of the Union.
It is undenied that during August when Jim Duncan would leave the plant
temporarily, he would tell Fox to look out for things-thereby indicating his
faith in Fox as a responsible employee.
On August 29, the day before the representation case hearing was set for
Asheville, Fox
asked Mr. Gunter if I could get off the next day to go to that hearing, and
he asked me if I had been legally summoned, and I said no, not that I know
of, but I want to go, and he said well, said do as you please about it, but
said if you haven't got a good fireman in your place, said you will be kicked
off the job; and I asked him, I said would Glenn Riddle do-he is on the
second shift-and he said no it would be too hard on him to fire it; and I
asked him if I could get someone else, and he said just let that alone, if
I need a man I will get him.
Concerning this conversation Gunter had no recollection whatsoever, but given
an opportunity he did not deny that it might have taken place. Throughout
his testimony Gunter's memory was faulty and numerous times he stated that
he did not remember well the details concerning which he was testifying.
At about 9: 30 or 9: 45 in the morning of September 2 Fox told his foreman,
Jim Duncan, that he wanted to get off to go to the hearing. The fact that the
hearing was coming up had been common talk around the plant for several days.
Duncan understood Fox wanted to go to a union meeting . Duncan replied, ac-
cording to Fox, "Lee, I can't let you go, I ain't got the authority to do it." Fox
then said " . . . well, in case I go, . . . I will leave the boiler in your charge, I
want you to watch it . . . He said he would look after it." Fox testified fur-
ther that Duncan did not tell him not to go. Duncan's version of this conversa-
tion was that after Duncan told Fox he did not have authority to let him go
Fox replied that he was going regardless of the consequences.
Fox stated that on previous occasions when he had asked Duncan's permission
to get off Duncan had let him off "if I needed off," that never before had Dun-
can said he lacked authority to let him off. Duncan stated that Gunter had
never given him authority to let men off to go to a meeting.
Fox testified that as he was talking with Duncan he saw Superintendent
Gunter's car coming down the road, that he knew from the way Duncan talked
that he did not want to tell Fox to go, "and I didn't want to bother him any
more than possible, and I told him, run out there, Uncle Jim, and stop Mr. Gun-
ter and I will see him about going; I thought it would be better on him if I got
permission straight from Mr. Gunter and let him out." Duncan hailed Gunter
and talked with him and Gunter pulled up alongside the boiler room door and
motioned for Fox to come out. Duncan left and told Fox later that he did so to
avoid hearing anything that was said and to avoid getting involved himself.
Fox testified that Gunter
asked me what in the world was I trying to do ; and why was I wanting to
cause him trouble ; and he asked me if I had been legally summoned again
I told him not as I knowed of ; I told him that they had requested me
to go, but I never was in no trouble like that in any way and I didn't know
ENGLISH MICA COMPANY 779
exactly what legally summons was.... I told him the Union wanted me
to go . . . He said, "Lee, I can't promise you anything" . .. He said, "just
go on back in there and go to work, and . . . this Union business will never
be mentioned to you any more, that he would never. I took it to imply that
he would never cause me any trouble for my part in it.
Gunter denied that he asked Fox why he was trying to cause him trouble or that
he told Fox to forget the Union and all would be all right. He testified he told
Fox that if he had been properly summoned he should go, if not he should go
back to work.
As Fox and Gunter were talking Clarence Hall, the union representative, with
Harold Thomas and Jack Young in his car, drove up alongside Gunter's car.
As the Hall car drew up Gunter said, according to Fox, "go on if you want to,"
and so Fox got into Hall's car in the presence of Gunter and the car drove
away to the representation case hearing in the town hall at Spruce Pine, a
quarter of a mile distant. They arrived shortly before the hearing started (at
10 o'clock) ° and stayed until it ended (at about 12 noon).8 Gunter said that
because he was "worried and excited" he did not notice whose car Fox got into.
After Hall's car drove away Gunter spent about 15 minutes looking for a
man to take Fox's place until the end of the shift at 2 p. in. and then returned,
to Plant 2. Meantime Duncan told Lane Ledford, the miller in Plant 2, to watch
Fox's boiler as well as his own job.' Ledford did so and saw that the pressure
was normal-about 80 to 100 pounds as he testified. When Gunter returned
15 or 20 minutes later the plant was under control, in full operation, and every-
thing was running smoothly. Ledford had noted that an oil line in an engine
which pulled the mill was temporarily stopped up and had called that to Dun-
can's attention and when Gunter came up Duncan was correcting the situation.
To do so was one of his jobs as foreman, according to Duncan's testimony.
There was no proof of any connection between Fox's absence and the stopping
up of the oil line or that it wouldn't have occurred had Fox been there. The
plant continued in full operation. When Gunter came up to Duncan he told him
to shut the plant down, and he told Ledford to pull the fire out of the boiler.
All of this was done and the doors to the plant were closed.
At some time during the hearing that morning Gunter dropped in to the hear-
ing for a few moments. While there he saw Fox, Thomas, and Jack Young, the
only employees on the first shift who were present, and two employees from the
second shift who were not supposed to be on duty.
That afternoon in front of the post office shortly after the conclusion of the
hearing, Gunter had a conversation with Fox and two other employees, Ledford
and Claude Autrey, who were put out of work by the shutdown of Plant 2.
Gunter told Ledford and Autrey to return to work the next working day. Fox
asked about himself. Gunter replied, according to Gunter's testimony, that
Fox was fired, "not for no Union activities" but "for leaving the job without
permission." Gunter then added that if Fox ever got another job he should
be careful about leaving it without permission. Fox replied that Gunter had
given him permission to go.
' According to the transcript in case 34-RC-154.
8 Ibid.
This had happened several times before when Lee Fox would leave on some errand. It
happened once when Duncan sent Fox to Grassy Creek, a village 5 miles away, to find a
man to come to work. On such occasions Ledford would watch both the mills and the
boiler. According to Ledford this was not difficult. On occasion when Duncan would
sent Fox an an errand he himself would watch the boiler. Sometimes the errands Duncan
sent him on took 11/2 hours.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Fox, whose memory was much better than Gunter's and who im-
pressed me as an honest witness, the discharge conversation took place Septem-
ber 3 when Fox was handed his final checks by Gunter. It is found that on that
date Gunter told Fox that he was discharged for leaving the job without per-
mission. It is found also, as testified by Fox and not denied by Gunter, that
Gunter then told Fox that Fox would never fire a boiler for English Mica
Company again, that Gunter would never let Fox operate a press, but that the
first opening he got other than firing or pressing, Gunter would drive out to
Fox's house and let him know.
When Lane Ledford, whose job was neither firing nor pressing, was replaced
September 12, a few days later, however, and in order to get a replacement, as
Gunter testified, he had to promise a man a permanent assignment, he did not
as he had promised drive out to Fox's house and let him know. In explanation
of this failure at the hearing Gunter stated that he did not know where Fox
lived. He admitted, however, that numerous times he had taken Fox to Fox's
father's store in Grassy Creek and that he knew Fox lived in Grassy Creek.
At another point in his testimony Gunter states, "I have taken Lee Fox home
hundreds of times, five miles out here. . . ." In further explanation of the
failure he testified that he needed a replacement quickly and didn't have time
to go for Fox. Grassy Creek was only 5 miles away.
Gunter testified that about the first of the year 1950, he offered Fox reem-
ployment with Respondent. Fox categorically denied this and denied that he
refused reemployment with respondent. Fox testified that shortly before the
conversation in question with Gunter he had told Jim Duncan that he had
found a job with Gulf Oil Company, that when Gunter later spoke to him Gunter
observed that he "didn't think there had been any use to offer me a job." Fox
testified that he told Gunter, "I would be glad to work up there," referring to
Respondent's plant, and that "I would work for him in preference to the Gulf
Oil." It is found that Gunter did not make a definite offer of reemployment to
Fox and that at all times since his discharge September 3, 1949, Fox has been
willing to accept reemployment with Respondent.
Respondent's contention through its testimony was, in effect, that Respondent
had had no advance notice that Fox, Thomas, and Jack Young had wanted to
go to the hearing that morning in Spruce Pine, that it was therefore entitled to
keep them at work unless they were subpoenaed. It contended that Gunter did
not give Fox permission to leave and that his doing so without permission was
just cause for discharge.
Fox impressed me as an honest, credible witness. He testified at a slow, even
gait with answers as ready and direct on cross-examination as on direct
examination. Gunter, on the other hand, did not impress me as a credible
witness. By his own admission his memory was very faulty. He stated at
one point in his testimony, "I can only remember back a few days." By his
own admission he did not clearly remember a conversation he had with Lane
Ledford the night before the opening of the hearing in this case, only several
days before he testified. At times he was confused in his testimony, and at
other times evasive, resistant, rambling, unresponsive, and self-contradictory 10
It is concluded that Duncan and Gunter early knew that Fox was an active
member of the Union, that when Plant 2 reopened in August Gunter sought to
seize the opportunity to replace Fox but was dissuaded by Duncan who valued
Fox's services. It is concluded that Fox's request 'to get off to go to Asheville
1o See, for example, footnote 11, infra. Also Gunter testified first that a mechanic
could be spared from his work for a week, and later that he could not be.
ENGLISH MICA COMPANY 781
and Gunter's reply were made substantially as related by Fox. The conversa-
tion concerning Fox's going to the hearing on September 2 is held to have
taken place substantially as related by Fox. Duncan's statement that he lacked
authority to let Fox off, the first such lack of authority he had ever expressed,
indicated his awareness of something unusual in the purpose of Fox's leaving,
but his willingness to look after the boiler indicated there was nothing unusual
in Fox's asking to leave for a little while. Duncan absented himself from the
ensuing conversation between Gunter and Fox because he knew the opposing
views of Gunter and Fox concerning the Union and wished to avoid involvement
between them. It is concluded that the conversation between Gunter and Fox
took place substantially as related by Fox, and that at the end of it Gunter
told Fox to "go on if you want to." Gunter testified that at this moment he
was "worried and excited," states of emotion which combined with his faulty
memory do not lend credence to his version of the conversation. If Gunter's
version were to be believed Fox would. have committed an act of insubordina-
tion in Gunter's presence, leaving just after he was told not to, an act which
it is difficult to believe would not have resulted in Gunter's discharging him on
the spot. Nor is it likely that if Fox had disobeyed Gunter's authority to his
face that Gunter would have later discharged him for anything other than
insubordination. Gunter was "worried and excited" not because one of his
firemen wanted to be absent for a little while, which was not unusual, but because
be thought the Union through the impending hearing was threatening his con-
tinued control of his operations.
When, after leaving for 15 or 20 minutes, Gunter returned to Plant 2, it was
running in normal fashion. The fact that it was running with one man short
was in no way unusual. His decision to shut it down, therefore, was motivated
not by any fear for the safety of the property and machinery, but by a desire
to create a situation which would seemingly justify the discharge of Fox,
whom he had long before decided to get rid of when the opportunity presented
itself. He had decided that the opportunity had arrived and he seized upon it.
It is held, therefore, that "leaving without permission" was a mere pretext
and that the real reason for the discharge of Fox was to discourage activity
and membership in the Union among the employees by getting "shed of" one
of its leaders, and because he engaged in concerted activity by attending the
hearing. Such discharge interfered with, restrained, and coerced Respondent's
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. George H. Young, Jr.
George H. Young, Jr., referred to herein as Jack Young, worked in Plant 1
as a presser and served as the Union 's committeeman in that plant . His fore-
man was his father, George H. Young, Sr., referred to herein as Foreman Young.
Foreman Young testified that his son "asked me to get off to attend the meeting
in Asheville," referring to the representation case hearing in Asheville, that
he gave him permission to go, that he obtained a man to take his place. Since
Jack Young did not go to Asheville he worked his shift instead of his substitute.
He told his father that the hearing was "changed to Spruce Pine on September
2nd." On September 1 Jack Young reminded his father of the hearing the next
day and told him he did not know whether or not the Union would want him to
testify. Foreman Young characterized his son's remarks as being not "exactly"
a request for permission to go. The foreman "didn't tell him to go and didn't
tell him not to go." Foreman Young then made arrangements for another man,
one Carpenter, to report for duty in the morning, but in the morning Jack Young
reported for work and Carpenter was not used. At the time he let Carpenter go
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Young understood that his son might later during his shift go to the
hearing.
On the morning of September 2, 1949, according to Foreman Young's testi-
mony, as Foreman Young was standing at the main entrance of Plant 1 Clarence
Hall, the union representative, "came up there after him, and he said I am going
to the meeting, and I said will you be back, and he said yes, just as soon as the
meeting was over ; Lloyd Biddix was there-Jack had been speaking to the
other fellow to look after his job until he got back; and I turned to Biddix and
asked him and Douglas Stubbyfield would they look after Jack's job until he
got back and they said they would." Jack Young told his father he did not
think he would be long. Foreman Young testified further that he was under the
impression that it was the same hearing postponed from Asheville for which
Jack Young had already received his permission to be off, and that that was the
reason why he didn't give his son specific permission to be off on the second
occasion. Further, Jack Young "didn't.. directly ask me ; he presumed it was
alright for him to go."
Charles Buchanan, an employee, testified, contrary to Foreman Young's ver-
sion, that the latter told his son that he did not have authority to let his son
go to the trial. This version is not adopted. Twice the foreman had made
arrangements to have a. substitute come in to work in his son's place, acts
scarcely consonant with lack of authority to let the son off. Further, at least
twice before the father and son had discussed the latter's going to the hearing,
and there was no suggestion of lack of authority in either of those conversations.
On this morning Jack Young was serving as a presser, whose duties included
being responsible for the proper pressure in the hydraulic pump. Biddix, whom
Foreman Young asked to take over Jack Young's duties, was a miller. When
Clarence Hall drove up and Jack Young departed there was no evidence that
either Superintendent Gunter or his car were in the vicinity.
About 30 to 40 minutes later Foreman Young checked the plant, including the
pump and press Jack Young had worked on and which was being taken care of
by others, and found all to be in proper order.
Sometime after that Superintendent Gunter arrived at Plant 1 in a state of
agitation, having a little while before given instructions that Plant 2 be shut
down. Immediately he pulled the lever which shut down the water wheel, which
shut off all the power for the entire plant thereby bringing the entire plant to a
standstill. According to Gunter's testimony he did this because when he entered
"there wasn't a man in sight. I couldn't see a man anywhere on the floor, I
could hear the press pump, the hydraulic pump running, and I run over as close
to it as I could get to it without crossing the tank and going through some mud
from the way I come in, and I saw it was under full labor and the gauge showed
it was under 125 pound pressure ; I couldn't quickly get over to the pump to stop
it, but I went back a few steps and shut the wheel down, that stopped everything;
and then I started on down through the mill looking for somebody ; there was
not a man on the floor anywhere; well, I went down a little ways and went up
a pair of steps to the dry room and two men came in from out of the mill, and I
asked them what was the matter, and, well, they said they had been after a
drink of water."" He found Foreman Young on a low scaffold performing one
of his regular functions and asked him where his crew was. The foreman re-
plied they were all on their jobs except Jack Young. Gunter left Young and
soon the plant vyas running again. Young went down and found all of his crew
working. The only place men could get water to drink was at a spring just
12 Later in his testimony Gunter referred to only one man returning from a drink.
ENGLISH MICA COMPANY 783
outside the mill. No permission was ever required or asked to go to the spring.
The men went at will.
Foreman Young testified without contradiction that this was the first time in
the years of his employment for the Company that he could recall Gunter's hav-
ing shut down the plant without first speaking to him about it, that the normal
procedure was for Gunter to speak to the foreman first.
Foreman Young testified convincingly that the above incident took place at
about 11 a. in. and that he had not gone onto the scaffold until just before Gunter
came in. His whereabouts during the previous hour when Jack Young had been
.absent were not given in the record. There was no evidence, however, that he
was not doing what he was supposed to be doing, no claim that he was not per-
forming his job in the customary manner. Since he had been foreman of
Plant 1 for some 24 years it is concluded that he was a competent foreman, and
that at the time of the incident he had the plant in customary control. The
evidence indicates that none of'the employees had to remain glued to a given spot
in the plant, and that they moved about freely while being completely responsible
for their own operation '
Respondent's claim through its testimony was, in effect , that since the press
operator was responsible for the amount of pressure which built up, his duty
was to remain at the press and never leave it. Foreman Young's uncontradicted
testimony was, however , that the press operator has other regular functions which
keep him away from the press for minutes at a time, that from time to time
Gunter has told him to have the press operator perform other duties concurrently
with running the press , that in any case pressure would not be allowed to reach
the blowing-up stage because if the operator was going to be absent he would
slip the pressure weight back thereby providing an automatic overflow valve
for excess pressure . Normal operating pressure on the pump is 125 pounds. The
capacity of the press was 500 pounds. Gunter testified that pressure was at
125 pounds just before he shut the plant down on the morning in question, There
was no testimony that the pressure weight was not back.
After the conclusion of the hearing Jack Young returned to his job and finished
the shift . During his absence other employees had performed his job . They had
been asked to do so by their foreman and they had done so.
That afternoon Foreman Young asked Gunter if Jack Young was to work the
next day and Gunter replied , no, that Jack would be fired . Foreman Young
testified that Gunter asked him if Jack had had permission to go to the hearing,
that he replied "I didn 't tell him to go and I didn't tell him not to ," that he started
to explain to Gunter that he had given Jack permission to go to Asheville, ".. .
but he said that didn't have any bearing on this here."
The following day, September 3, 1949, Gunter drove out to Jack Young's
house, taking Foreman Young with him, and discharged Jack Young "for leaving
the job without permission."
Jack Young did not testify . He was in an automobile accident shortly before
the hearing.
A few weeks after the discharge Gunter told Foreman Young that if Jack
Young did not meet his payments on an outstanding loan, he would foreclose.
Foreman Young bought up the loan.
It is concluded that Gunter's agitated state when he arrived at Plant 1, having
shortly before shut down Plant 2, was due to his worry over the impending
Board hearing and his fear of the Union rather than the condition in which he-
found Plant 1. Plant 1 was Respondent's largest plant and it consisted of several
12 Jack Freeman , a miller in Plant 4, testified , "I run around occasionally ; I don't have
to stay right there." He stated also that as a miller he sometimes fired the boiler.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
floors, but it worked only five men to a shift. All of the employees performed
several functions, as the entire record in the case shows. As Gunter testi-
fied, ". . . a little operation like this, we can't have a man for every little duty.
We have been in business long enough to know what a man can do safely and
what he can't." Under such circumstances it is reasonable to assume that all
five of the employees may have been performing their regular duties the moment
Gunter walked into Plant 1 and yet none of them be visible to him as he walked
through on one floor . In any case Gunter's testimony is not credited in view of his
great unreliability as a witness.
At a time when the plant was in the customary control of the foreman, Gunter
was so agitated over the Union that he shut down the plant himself without
first speaking to the foreman-the only time in Foreman Young's some 24 years
as a foreman.
That afternoon, after Gunter had seen Fox, Jack Young, and Thomas at the
hearing, Gunter refused to listen to Foreman Young's explanation that he had
given Jack permission to go to Asheville and that both he and Jack considered
that the permission carried over to the hearing several days later at Spruce
Pine. Without hearing him out Gunter said there was no connection between
the two. When that afternoon Gunter asked Foreman Young if Jack had had
permission to go to the hearing, he was seeking a justification for getting rid of
Jack Young, for carrying out his declared intention of getting "shed of" the
union leaders and those who went to the hearing. His refusal to hear what his
own foreman had to say concerning the permission he was inquiring about
indicates that his mind was then made up, that he was seeking a pretext for
discharging Young for other reasons. In fact Jack Young had permission to go
to the hearing; in fact by a complete meeting of the minds of father and son it
was understood that the permission to go to Asheville carried over to Spruce
Pine.
It is.concluded that "leaving the job without permission," was a mere pretext
for the discharge of Jack Young, and that Gunter really discharged him to
discourage activity and membership in the Union and because he engaged in
concerted activity by attending the hearing. Such discharge interfered with,
restrained, and coerced Respondent's employees in the exercise of the rights
guaranteed in Section 7 of the Act.
3. Harold Thomas
Harold Thomas was a boiler fireman at Plant. 4 for several years prior to his
discharge September 3, 1949. He signed up for the Union late in June 1949 and
served as its committeeman in Plant 4. Thomas' undenied testimony was that for
a week or two before September 2, 1949, he and his foreman, Roscoe Duncan, were
not speaking to each other, whereas theretofore they had customarily chatted
freely. In the absence of proof of any other cause this silence is held to have
been caused by the pendency of the hearing.
Shortly before August 30, 1949, the date the representation case hearing was
set for Asheville, Thomas told his foreman, Roscoe Duncan, that he was going
to the hearing, that "they" had requested him to, not specifying who "they"
were. Roscoe replied, according to Thomas, "Harold, you better not go over
there ; if you do they will fire you." Never before had Duncan cautioned Thomas
that he would be fired if he went someplace. Roscoe Duncan testified that he
did not remember this conversation, but he did not deny that it might have taken
place. Thomas impressed me as a credible witness. It is found that such con-
versation took place substantially as Thomas related it.
ENGLISH MICA COMPANY 785
September 2, 1949, in the morning , Thomas left the plant and went to the
representation case hearing . On direct examination Thomas was asked if
before going he requested permission of his foreman to go. His reply was, "I
asked-I told him I had to go to town and I asked him if he would watch the
boiler while I was gone ." Roscoe Duncan , the foreman , "hung his head down
and said, `Well."' According to Thomas, Duncan said nothing more. Duncan
did not tell him not to go. Thomas then asked the plant mechanic, Roy Duncan,
brother of Roscoe, who was welding on a gear wheel in front of the boiler room
door, to watch the boiler if Roscoe didn 't. Roy replied that he would.
Roscoe Duncan's testimony was that Thomas told him he had to go down
town a little bit and asked Duncan to fire the boiler for him, that he said the
boss had sent for him, that Duncan did not tell him to go or not to go even
though, as he testified, he thought Thomas meant Gunter had sent for him.
Roscoe Duncan testified further that after Thomas left he did not look after the
boiler and did not put anyone else on it . On past occasions when Thomas had
left on an errand Duncan had watched the boiler for him.
Roy Duncan testified that 5 minutes after Thomas left he saw Roscoe Dun-
can go into the boiler room and did not see him come out. He allowed that
he might have gone out another door. Jack Freeman, an employee, testified
that he saw Roscoe Duncan fire the boiler some after Thomas left, and that he
himself fired it some ; that they kept the work moving along and the pressure
normal. He stated that other employees than the fireman sometimes fire the
boiler without being told to. The plant ran along as usual until Gunter arrived.
Shortly after finishing his conversation at Plant 2 , as related above, Gunter
arrived at Plant 4. As he drove up Roscoe came out and told him that he had
no fireman . Although , if Duncan 's testimony be credited , be thought Gunter
had sent for Thomas, he did not ask Gunter if this was the fact. In their
testimony Duncan and Gunter did not agree as to what then ensued . Duncan's
testimony was that he told Gunter he did not know where Thomas had gone,
that Thomas had asked him to look after the boiler or have somebody else
do it, and Duncan had refused . Gunter 's testimony was that Duncan said
Thomas had gone to a meeting. On direct examination Gunter stated that
Duncan told him he tried to have Roy Duncan take over the boiler; on cross-
examination Gunter testified , "I didn't know Roy Duncan had been asked."
Gunter then asked if Duncan had given Thomas permission to go, and when
Duncan replied in the negative Gunter told Duncan that if he did not have a man
to take his place he would have to shut down, that they could not operate a
boiler without a fireman. Duncan then gave orders to Jack Freeman, the
miller, to shut the mill down, which Freeman did. The fire in the boiler was not
put out, however, and steam continued to go from the boiler into the driers.
Although not so much steam was needed when the mill was down, the employees
kept the steam up during the rest of the shift as they sat around the boiler
room waiting for 2 o'clock to arrive. At about 12: 30 p. m., Thomas returned
from the hearing and "rolled" some coal, i. e. moved coal up to where the fireman
on the next shift could shovel it.in, there being no automatic stoker at Plant 4.
The following day, September 3, 1949, when Thomas reported for work there
was a man in his place . He spoke to Roscoe Duncan who told him Gunter
wanted to see him. Thomas saw Gunter who, according to Thomas' testimony,
discharged him "for leaving the job without permission and the boiler not
properly taken care of." Gunter assigned leaving the job without permission
as the sole reason for the discharge.
It thus appears that a new standard of measurement was imposed upon
Thomas' conduct when he left the plant to go to a Board hearing. In the
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past he had not always asked permission before leaving , but he had always ar-
ranged for some other employee to watch his boiler ; and for this he had never
been criticized in any way . Duncan admitted that on some such occasions he
himself watched the boiler.
When Duncan warned Thomas not to go to Asheville upon pain of losing
his job he indicated that he knew of Gunter's intent to "get shed of" the
union leaders such as Thomas . He was equally aware of the jeopardy in which
Thomas was about to place himself on September 2 when Thomas told him he
was leaving and asked Duncan to watch the boiler . As was his custom Thomas
simply told Duncan he was leaving and assumed that permission would be
automatic , as usual. In view of the custom of the employees to do that, Dun-
can's silence may not be construed as a refusal of permission . As Duncan testi-
fied, "I didn't tell him to go or not to go." After Thomas told him he was.
going he went into the bathroom and changed his clothes, and during all that
time - Duncan could have, but did not, either tell hint to go or not to go. It
is found that permission was not asked , that it was customary to leave without
permission , and that no permission was withheld.
Nor did Duncan refuse to watch Thomas' boiler. When Thomas asked him to
lie said simply , "Well," and ' nothing more . Before leaving Thomas took the
double precaution of the responsible employee he was, of asking Roy Duncan to
watch the boiler if Roscoe Duncan didn't. When he left he did not know
whether or not Roscoe would watch it, but he knew Roy would if Roscoe did•
not. Roscoe Duncan's use of the word "Well" and his silence otherwise, may
not therefore be construed as indicating to Thomas that Duncan would not take
care of the boiler and therefore as implied refusal of permission to leave.
Duncan's testimony that Thomas said the boss had sent for him cannot be
credited . If Duncan thought on the basis of this alleged statement, as he
testified , that Gunter had sent for Thomas, there can be no question but that he
would have told Thomas to go immediately and that he would watch the boiler.
His failure to do so indicates that he had no such thought and that Thomas
made no reference to the boss . This conclusion is buttressed by the fact that
when Gunter , drove up Duncan did not ask him if he had sent for Thomas and
did not ask him what lie wanted of Thomas or anything like that.
In the light of his close , paternal connection with his employees , Gunter could
not have been ignorant of the employees ' custom under which the job of one
temporarily absent was taken care of by the others . In this instance his
immediate reaction that if the fireman was absent the plant would have to
be shut down without inquiring as to whether in fact the plant was operating-
as indeed it was-shows that he was seeking an excuse to get rid of Thomas
rather than that he was concerned about the plant.
It is concluded that Thomas was one of the employees Gunter was out to get
rid of, as he confided twice to Foreman Young, that he seized upon "leaving
the job without permission " as a pretext for accomplishing his purpose, that
his real reason for discharging Thomas was to discourage membership and
activity on behalf of the Union and because he engaged in concerted activity by
attending the Board hearing. Such discharge interfered with, restrained, and
coerced Respondent ' s employees in the exercise of the rights guaranteed in
Section 7 of the Act.
4. Lane Ledford
Lane Ledford was a miller in Plant 2 and had been for over a year at the time
of his replacement on September 12, 1949. During the effort to organize the
employees of the Company beginning in June, Ledford was outspokenly in favor
ENGLISH MICA COMPANY 787
of the Union, which he joined June 21. He spoke to other employees concern-
ing it and asked them to Join.
Plant 2 was shut down for repairs the last 3 weeks of July and the first week
of August . At the beginning of this period as Ledford was receiving his pay
check from Gunter the latter told him, according to Ledford , that Ledford "had
joined the Union along with lots of the other boys, and we were trying to force
something on the Company that they could not stand to be under ." Gunter,
whose memory was not good , testified that he did not remember ever discussing
the Union with Ledford at any time before his discharge . Gunter did not deny
making the statement . I find that he did make it and that he knew Ledford
was a member of the Union at that time . It is found further that early in July
Ledford told Jim Duncan , his foreman , that he was a member of the Union-as
was testified by Ledford and undenied by Duncan.
Ledford was on the first shift, which started work at 6 a. in. On the morning of
September 12, 1949, Ledford was ill and unable to go to work. At about 5:45
a. in., from a neighbor 's house, he telephoned the plant with intent to notify the
foreman that he would not be in, but no one answered . He did not think of
calling Gunter 's house because he did not think of Gunter being up that early.
There were no instructions that in such cases Gunter 's home should be called.
Then he returned to bed. At about 6: 30 or 7 a. in. Jim Duncan and Claude
Autrey, another employee, drove to the apartment house where Ledford lived
and Autrey knocked at Ledford's door. Ledford did not hear it and there was
no answer. A man in the hallway told Autrey he thought Ledford had already
gone to work . Autrey reported these facts to Duncan and they returned to the
plant. They had been away from the plant about 20 minutes . At about 8 a. in.
Gunter arrived at Plant 2 on his morning round of the plants. Duncan reported
that Ledford was missing, that he and Autrey had gone to his apartment to find
him and been told he had left. Within a few days before this Ledford had told
his fellow employees that he had applied for a job at the Robbins Knitting Mill,
and Gunter had heard of this. The knitting mill was located just across from
where Ledford lived and his wife worked there. Gunter testified that when he
heard Ledford was absent he was certain in his own mind that Ledford had ob-
tained the job at the knitting mill and that that was where he was; he therefore
thought immediately of finding a replacement . He made no investigation to
confirm his suspicion, however, although he knew the owners and the general
superintendent of the knitting mill. He did not, and it did not occur to him to,
call them to inquire if Ledford had gone to work there . Instead he went looking
for a replacement . He did not , as has been found above , find Leroy Fox and
offer him the job. He could have gone to Ledford 's apartment and back to make
another check in 20 minutes , but instead it took him , as he testified , about 11/2
hours to find a replacement , one Pearson . In order to wean Pearson away from
the job he then had Gunter promised him, as Gunter testified , permanent em-
ployment with Respondent . He later told Ledford, however , when Ledford asked
him whether he still had a job, that he didn't know, that he would have to see,
that he hated to bring a man in one day and throw him out the next-sentiments
ineonsistentwith having given Pearson a permanent job.
At about 9:30 or 10 o'clock that morning Ledford went to town to see
Dr. Peterson, his physician. As the doctor was not in, Ledford spent a few
moments walking around town, during which Gunter drove up. Ledford told
Gunter he was sick. When Gunter asked why he hadn't notified the plant,
Ledford explained that he had tried to early that morning. To Gunter's ques-
tion why he hadn't called Gunter's house or his son Roy's, Ledford replied
that he hadn't thought of it. Ledford stated that he had come downtown to
see his doctor . Gunter said that he had hired another man in his place, told
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him to get in the car and he would take him to the mill and get his check.
Ledford did so. They drove to the office in Plant 1, got the check, and then
Gunter took him back downtown and let him out at the doctor's office." During
all of this time Gunter said nothing to Ledford about the knitting mill. It is
reasonable to conclude that had Gunter really thought that morning that Led-
ford had left his employ and gone to work for the knitting mill without mention-
ing it to him, he would have made some mention to Ledford of the knitting mill.
Either on this day or the next, Gunter told Ledford that he would give him the
next job that he had available. At about the end of October, shortly after the
service upon Respondent of the first charge filed with the Board alleging dis-
criminatory discharge of Ledford, Gunter drove to Ledford's home and hired
him as an assistant to a chemist engineer who was in Respondent's employ,
doing experimental work. Ledford assisted in this experimental work until it
was abandoned in early December 1949, at which time he was laid off by the
chemist engineer. The General Counsel contends that this discharge was in
violation of the Act, but the proof did not support the contention. Since this
was a temporary job it was not substantially equivalent to his former one.
Ledford was rehired in May 1950, and was working at the time of the hearing.
The record does not reflect whether it pays as well as the job from which he
was discharged September 12, 1949, or whether he prefers the former job.
The question arises as to whether Gunter replaced Ledford in the good faith
assumption that he had obtained other employment or whether he seized upon
his absence as a pretext for getting rid of him as one of the union leaders
pursuant to his declared intention of getting "shed of" those who joined the
Union.
Foreman Young testified that it was not customary to discharge an employee
who did not report to work or give notice of his absence because he was sick.
As to his policy with respect to employees failing to report for work, Gunter
stated that ". . . I try to find out the reason ; if they are sick or have a just
cause for not reporting I go along and when they come in why I put them back
to work." He stated also that he tries to ascertain the reason for the absence
before taking action on it.
In the case of Ledford this policy was not followed. Gunter made no reason-
able effort to verify the rumor that Ledford had obtained other employment; in
fact he made no effort at all. In a few moments by a phone call or driving out
to the knitting mill Gunter could have learned whether Ledford was employed
there, had he really wished to know. No reasonable explanation was offered
for this failure to make reasonable effort to verify the rumor. It is found that
Gunter did not wish to know the truth, because he sensed in Ledford's absence
the opportunity he had been awaiting of getting "shed of" Ledford because he
had been active in getting other employees to join and assist the Union. It is
held that Ledford was replaced and discharged for the purpose of discouraging
activity and membership in the Union among the employees by getting "shed
of" one of its active members. Such discharge interfered with, restrained, and
coerced Respondent's employees in the exercise of the rights guaranteed in
Section 7. of the Act.
5. Alleged violation of Section 8 (a) (4)
The General Counsel contends that the discharge of Fox, Young, and Thomas
was in violation of Section 8 (a) (4) as well as 8 (a) (1) and (a) (3). With
18 Ledford saw the doctor, received a prescription and had it filled, returned home, took
the medicine in accordance with the doctor's directions, and went to bed. The next day
he reported on time for work but found another mah in his place.
ENGLISH MICA COMPANY 789
this contention I do not agree. Section 8 (a) (4) provides that it is an unfair
labor practice for an employer "to discharge . . . an employee because he has
filed c,Darges or given testimony under this Act." Here the three employees
neither filed charges nor gave testimony prior to their discharge. I have found
no case in which the Board interpreted the language of this section to be broader
than its plain meaning.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities, set forth in Section III, above, occurring in connection
with Respondent's operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set
forth above, I recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
Respondent having discharged Leroy E. Fox, George H. Young, Jr., Harold
Thomas, and Lane Ledford because of their union and concerted activities, I
recommend that Respondent offer to each of them immediate and full reinstate-
ment 14 to his former or a substantially equivalent position 15 without prejudice
to his seniority and other rights and privileges and make each whole for any
loss of pay he may have suffered by reason of Respondent's discrimination
against him, by payment to each of them of a sum of money equal to that which
be normally,would have earned as wages from September 3, 1949, in the case of
Fox, Young, and Thomas, and from September 12, 1949, in the case of Ledford,
the dates of the discrimination against them, to the date when, pursuant to the
recommendations herein contained, Respondent shall offer them reinstatement,
less the net earnings of each during said period 1" Loss of pay shall be deter-
mined by deducting from a sum equal to that which these employees would
normally have earned for each quarter or portion thereof, their net earnings, if
any, in other employment during that period. Earnings in one particular quar-
ter shall have no effect upon the back-pay liability for any other quarter. The
quarterly periods described herein shall begin with the first day of January,
April, July, and October." It is recommended further that Respondent make
available to the Board upon request payroll and other records, in order to facili-
tate the checking of the amount of back pay duel"
Because of the Respondent's unlawful conduct and its underlying purpose
and tendency, I find that the unfair labor practices found are persuasively re-
lated to other unfair labor practices proscribed and that danger of their commis-
sion in the future is to be anticipated from the course of the Respondent's con-
duct in the past." The preventative purposes of the Act will be thwarted unless
14 Although Ledford has been reemployed on another job by Respondent, I am unable
to determine on this record whether or not he desires reinstatement to the position he
occupied before his discharge or whether the present position is substantially equivalent
to the one from which he was illegally discharged.
15 The Chase National Bank of the City of New York San Juan, Puerto Rico, Branch,
65 NLRB 827.
1" Crossett Lumber Company, 8 NLRB 440, 497-8; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
17F. W. Woolworth Company, 90 NLRB 289.
18 F. W. Woolworth Company, supra.
19 N. L. R. B. v. Express Publishing Co., 312 U. S. 426.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the order is coextensive with the threat. In order, therefore, to make effective
the interdependent guarantees of Section 7, to prevent a recurrence of unfair
labor practices, and thereby to minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, I will recom-
mend that Respondent cease and desist from in any manner infringing upon the
rights guaranteed in Section 7 of the Act.
Upon the basis, of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUsI0N8 OF LAW
1. English Mica Company is engaged in commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
2. United Stone and Allied Products Workers of America, C. I. 0., is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Leroy
E. Fox, George H. Young, Jr., Harold Thomas, and Lane Ledford, thereby dis-
couraging membership in United Stone and Allied Products Workers of America,
C. I. 0., the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
4. By said acts and other acts Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act, and has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]