Evans Products Co.

National Labor Relations Board - Board Decisions

Oct 12, 1966

160 N.L.R.B. 1822 (N.L.R.B. 1966)

1822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drivers Local 327, Affiliated With International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , or any other labor organization.
AMERICAN TEA & COFFEE CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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 questions concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee 38103, Tele-
phone 534-3161.
Evans Products Company and General Drivers, Salesmen, and
Warehousemen 's Local Union 984 , affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Cases 06-CA-2217, 2228, and 2235. Octo-
ber 12, 1966
DECISION AND ORDER
On May 10, 1966, Trial Examiner Herman Tocker issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof, and the General Counsel filed
a reply brief thereto. The Respondent's subsequent motion for leave
to withdraw certain of its exceptions and to file a supplemental brief
by substituted counsel was granted. The Respondent thereafter filed
substitute exceptions and a supporting brief.'
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 these cases to a three-
member panel [Chairman McCulloch and Members Jenkins and
Zagoria].
i The brief originally filed by Robert L. Taylor, the attorney then representing the
Respondent , was not addressed to the issues In the case , and, moreover , was extremely
scurrilous in nature , and made an attack on the Trial Examiner 's integrity which we find
to be unwarranted, unfounded , and without merit . The Respondent , thereafter , pursuant to
leave granted by the Board , substituted as its counsel the fu in of Ilogle , Gates , Dobrin,
Wakefield & Long, who requested leave to file the substitute exceptions and brief on the
ground that the Respondent , after reviewing the original exceptions and brief submitted
,on Its behalf , had concluded that they contained statements which "do not reflect the
attitude of Respondent and that in Respondent ' s opinion they additionally do not reflect
the proper attitude towards an agency of the United States Government "
160 NLRB No. 141.
EVANS PRODUCTS COMPANY 1823
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, the Respondent's substitute exceptions and brief,
the General Counsel's reply brief, and the entire record in these cases,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, as modified hereinafter.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Amend paragraphs 5 and 8 of the Appendix to the Trial
Examiner's Decision to substitute the words "WE wll L" for the words
"WE hereby."
[2. Add the following immediately below the signature line of the
Appendix attached to the Trial Examiner's Decision:
[NOTE,We will notify the above-named employees if 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 Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.]
TRIAL EXAMINER'S DECISION
This proceeding , with all parties represented was heard before Trial Examiner
Herman 'l'ocker in Memphis, Tennessee , on February 7, 8, and 9, 1966, on the
complaint , as amended , of the General Counsel and the answer of Evans Products
Company, the Respondent . Violations of Sections 8(a)(1), (3 ), (4), and ( 5), and
2(6), and (7) of the Labor Management Relations Act of 1947, as amended, are
charged . A brief was submitted on behalf of the General Counsel . Respondent
submitted none.
1. THE PLEADINGS
The complaint, as it ultimately was developed during the hearing, alleges that
Respondent , on or about October 20, 1965 , unilaterally changed existing terms and
conditions of its employees by posting certain work rules and regulations and then
enforcing them without notifying , consulting, or bargaining previously with General
Drivers, Salesmen and Warehousemen 's Local Union 984, the duly designated rep-
resentative of its employees (hereafter referred to as the Union).
It is alleged also that these rules were promulgated and enforced in retaliation
against its employees for having selected the Union as their collective -bargaining
representative.
It is alleged further that three employees , Kenneth Amos , Harvey Stephenson,
and Richard Brown, were discharged purportedly because of their violation of one
or more of these rules but actually because the Union had been selected as bargain-
ing representative and that Louis Mayo, Jr., was discharged because he had assisted
Local 984 in concerted activities for the purpose of collective bargaining and had
given testimony under the Act.
The theory of the General Counsel as to the Amos, Stephenson, and Brown dis-
charges is , in substance , that since the rules they allegedly violated were promul-
gated unilaterally and in retaliation for the selection of the bargaining agent, their
discharges were both a discrimination in regard to tenure of employment for the
purpose of discouragin' membership in the Local and interference with the
Respondent 's employees ' rights to self-organization and to form, join, or assist a
labor organization for the purpose of bargaining collectively through representatives
of their own choosing.
The theory as to Mayo is that Respondent discharged him because he had
engaged in union activities and had absented himself from work for the purpose of
1824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attending a representation hearing set by the National Labor Relations Board-a
violation not only of the express provision of Section 8(a)(4) of the Act but also
a discrimination in regard to tenure of employment for the purpose of discourag-
ing membership in the Union and interfering with, restraining , or coercing him in
the exercise of his rights to join or assist a labor organization.
The Respondent, in its answer, admitted its corporate capacity, jurisdiction in
the Board of this proceeding, that the Union is a labor organization within the
meaning of the Act, that the units alleged in the complaint as being appropriate
bargaining units are such, that on October 18, 1965, a majority of its employees in
those units selected the Union as their bargaining representative, and that it was so
certified by the Regional Director for Region 26 of the National Labor Relations
Board on October 26, 1965.
Respondent alleged that Local 984, "an unincorporated association, . . . failed
to qualify to do business within the State of Tennessee as required by Section
20-223 of the Code of Tennessee" but this is irrelevant because the Tennessee Code
may not impose on unions unauthorized restrictions or requirements inconsistent
with the Labor Management Relations Act of 1947, as amended. Such registration
requirement is not consistent with the Act.
Respondent denied also that it is required to bargain with Local 984 and that the
Local is the appropriate representative of its employees for the purpose of collective
bargaining. These are erroneous conclusions of law contrary to the Act and the
admitted allegations. Respondent admitted that Local 984 requested that it bar-
gain collectively with it.
Although it admitted that Amos, Stephenson, Brown, and Mayo were discharged,
it denied all allegations to the effect that these discharges were because of protected
organizing activities or (as to Mayo), for giving testimony under the Act.
It denied also that it promulgated and enforced any new work rules and regula-
tions for the purpose of retaliating against its employees for selecting Local 984 as
their bargaining representative and that it changed existing terms and conditions of
employment.
During the course of the hearing Respondent agreed that Amos, Stephenson, and
Brown had been discharged solely because of their violation of the rules thus pro-
mulgated and, as to Mayo, contended that he had been discharged following com-
plaints received from two of its best customers because of misconduct in which he
had engaged during the course of making deliveries to them.
II. THE ISSUES
In substance, the issues are:
1. Were certain rules which were posted at Respondent's establishment on Octo-
ber 20, 1965, newly promulgated rules governing terms and conditions of employ-
ment or merely a written version of rules which had been in effect in Respondent's
establishment prior to the organization activities and the selection of the Union?
2. Were they posted and put into effect to retaliate against the employees because
they had selected the Union as their collective-bargaining agent?
3. Were the discharges of Amos, Stephenson, and Brown for claimed violation of
these rules actually acts of retaliation because the Union had been selected as
collective-bargaining agent and thus both discriminatory discharges and acts of inter-
ference with collective-bargaining activities?
4. Was the real reason for discharging Mayo his exercise of rights guaranteed to
him under Section 7 of the Act and his attendance at the Board's representation
hearing?
Respondent claims that the rules were not new rules and so there was no change
in existing terms or conditions of employment. This is in justification of its unde-
nied failure to bargain collectively with the Union concerning them. Thus, there is
no' issue as to whether the rules were promulgated unilaterally- and, if they are
found to have been different, more numerous or more onerous than those previ-
ously in effect, there would be a violation of Section 8(a)(5) in view of the uncon-
tradicted testimony by the Union's representative that the Union had never been
notified of their promulgation.
In the resolution of all issues with respect to which credibility or oral testimony
became a factor I have weighed all the probabilities, consifdered the demeanor and
conduct of the witnesses, their candor or lack of it, their objectivity, bias or preju-
dice, their understanding of the matters concerning which they testified, whether
their testimony has been contradicted or sufficiently impeached, whether parts of
EVANS PRODUCTS COMPANY 1825
testimony should be accepted when other parts are rejected, consistency, plausibility
and probability, and the effect which leading questions might have had on the
answers elicited thereby.
I have given careful consideration to the brief filed on behalf of the General
Counsel and to the frequent and well-articulated statements of position presented
orally during the course of the hearing by Respondent's attorney.
Now, on the basis of the entire record I hereby make the following:
M. FINDINGS OF FACT
A. The business of the employer and jurisdiction
Evans Products Company is now, and at all times material herein has been, a
Delaware corporation licensed to do business in the State of Tennessee with a ware-
house and plant in Memphis, Tennessee, where it is engaged in the manufacture,
sale, and delivery of building materials. It is, as admitted by it, engaged in com-
merce under Section 2(6) and (7) of the Act. The Board has jurisdiction over it in
this proceeding.
B. The labor organization involved
General Drivers, Salesmen and Warehousemen's Local Union 984, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is, and at all times involved herein was, a labor organization
as defined in Section 2(5) of the Act.
C. The promulgation and posting of the rules
These rules admittedly were posted on or about October 20, 1965, 2 days
after a majority of the Respondent's employees in the units involved had selected
the Union as their representative for the purpose of collective bargaining.
They had an introduction or heading as follows:
NOTICE TO ALL EMPLOYEES
EFFECTIVE IMMEDIATELY THE FOLLOWING RULES AND
REGULATIONS WILL BE ENFORCED AGAINST ALL EMPLOYEES
WITHOUT EXCEPTION:
It is not disputed that the Respondent failed to inform the Union about the
posting of these rules and failed to bargain collectively with respect to them. The
heading of the notice, which uses the words, "Effective immediately" and the words,
"Without exception," is pregnant with the conclusions (1) that they had not been
in effect prior to posting and (2) that if they had been in effect, they had not
been enforced without exception. The time when they were posted, immediately
after the election at which the Union had been selected, points to the fact that
they were posted as retaliation because the employees had selected the Union as
their bargaining representative.
If these rules had been in effect before posting there would have been no need
to use the words, "Effective immediately." If they were in effect but had not been
enforced without exception, there was no need for the words, "Without exception."
This interpretation suggests immediately, as a matter of law, that there was a
violation of Section 8(a)(5) of the Act (in view of the admitted failure to bargain
concerning them) and a violation of Section 8(a) (1). Master Transmission Rebuild-
ing Corporation & Master Parts, Inc., 155 NLRB 364; Pepsi Cola Bottlers of
Miami, Inc., 155 NLRB 527, Electro Plastic Fabrics, Inc., 157 NLRB 1023.
D. Were the rules actually NEW rules?
As posted, the rules were as follows:
1) Any employee who fails to report for work on time three times without
satisfactory explanation within any ninety day period will be terminated with-
out exception.
2) Any employee who fails to report for work without notifying his super-
visor within one hour after the commencement of your work shift without
satisfactory explanation will be terminated without exception.
257-551-67-vol. 160-116
1826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3) Any employee who shall fail to carry out the duties or labor assigned
to him on three occasions within a period of ninety days shall be terminated
without exception. This shall apply only where the employee involved shall
have been notified in writing of his failure to carry out his duties or perform
labor assigned to him.
4) Any employee who shall disregard the safety rules and regulations as
posted in this plant and warehouse, or who shall fail to obey the same three
times within any period of ninety days shall be terminated forthwith without
exception.
5) Any employee who shall have a judgement rendered against him and
which garnishment shall issue against the company shall be discharged forth-
with without exception. An employee may avoid the penalty of discharge when
garnishment is issued as to his wages providing he shall satisfactorily settle
the judgement rendered against him or secure a release of the garnishment
within twenty-four hours after the garnishment has been served upon the
company.
6) There shall be no solicitation of employees for any purpose upon com-
pany premises during working hours.
Although Respondent contends generally that all these rules were in effect prior
to posting, it seems to be conceded at several places in the record that rule 6, the
one about no solicitation, actually was new of vintage recent to the posting. (I
shall make no finding as to the legality of this rule 6, which is unlawful on its
face, since there is no allegation in the complaint to that effect and the matter was
not brought up or litigated during the hearing.)
Numerous witnesses were called for the purpose of showing that the rules as
posted had not been in effect prior thereto.
Mayo testified that he never saw the notice before seeing it on the witness stand
and that the only rule which had been called to his attention was a requirement
that he call Supervisor Cothran (who had hired him) before 7 o'clock in' the
morning if he was going to be late or was unable to come to work.
Amos identified the posted rules as having been placed on the bulletin board
2 or 3 days after the election. He said that none had been posted prior thereto. He
said he had not been aware of anything contained in those rules prior to posting.
On occasions when he had been absent from work, certain Saturdays, it had been
his practice to come in the following Monday morning and give a verbal excuse.
These verbal excuses always were accepted and his absences were excused.
He said that he understood the rules to require only that an employee who is
able to do so report in but, if he is unable, a justifiable reason could be given.
Brown, who is no longer employed by the Respondent, said he had never seen
the posted rules before being shown them on the witness stand. He remembers,
however, that there had been one rule which provided that an employee who
failed to report for work three times within a 90-day period without a satisfactory
explanation would be terminated without exception. He says this was told him
orally by Supervisor Jones when he was hired but he never had seen it posted.
He was unaware of any of the other rules contained in the notice. On cross-
examination, he testified that no one ever informed him of the rule against
garnishments.
Vaughn, still in the Company's employ, testified that he had not been aware of
any of the rules contained in the notice before the posting. All he was told at the
time of hiring (which was in a different department) was that an employee had
to be prompt, had to report to work every day, and was not to take time off
unless it was absolutely necessary.
McCulley, no longer employed by the Company but employed before and after
the election, testified that the rules had been enforced after the election but not
before. He denied having been told that he was required to call in if he was not
able to get to work and that he had been told about garnishments.
Bowers, still employed by the Company, testified that he was not aware of any
of the rules posted prior to posting. He denied that when hired he had been
informed that promptness was required in reporting for work, that failure to report
for work would be followed by discharge, or about garnishments. When prodded
on garnishments, he was willing to admit only that he had known about some
employees against whom garnishments had been served and that they had been
given time off to have them released.
Stephenson, who was discharged allegedly for failure to report for work, testified
that he had been absent from work on six prior occasions. On three of these he
obtained doctors' statements and brought them to his supervisor, McCarter. These
EVANS PRODUCTS COMPANY 1827
absences appear to have been excused. While, on cross -examination , he admitted
that he had been told by Whitaker that he was required to report for work on
time, he denied that he had been told to call in before the work shift began or that
anything had been told to him about lateness or garnishments . On those occasions
when he had been absent and had called in, he left his messages with the "secretary"
who answered the telephone and made no effort to get in touch with his super-
visor. This was because on an early occasion when he had made such an effort,
he was unable to be connected with his supervisor . He was very firm in his
testimony that Supervisor Whitaker never told him to call in before 7 o'clock
if he was to be absent . He was not told anything about the rules when he was
hired . The foreman to whom he was assigned subsequently told him that if he
came in on time they would get along fine. All he was told by Whitaker when
Whitaker hired him was that he was to come in at six in the morning and that his
wages would be $1.25 an hour.
The foregoing testimony was given by witnesses who had been discharged or who
were no longer working for the Company or who were still working there. For
the purpose of demonstrating that the rules actually were in effect prior to posting,
Respondent called both supervisors and employees still in its employ.
Prince, who was the principal manager of the pre-finishing department , admitted
responsibility for posting the rules. He says they were dictated to his secretary by
his lawyer for the purpose of having them typewritten . He admits that the rule
against soliciting had not been in effect prior to posting but asserts that all others
had been. They were not posted until after the election because he had received
legal advice not to do so because it might have been regarded as an effort to
influence the election.
Over the objection of General Counsel , I allowed to be introduced in evidence
an exhibit claimed to have been prepared at the request of a Board employee.
This exhibit purported to show the names of 17 employees (including Amos and
Stephenson involved in this proceeding but not including either Mayo or Brown)
who had been discharged for infractions of the rules . The value of this list in
support of Respondent 's contention that the rules had been in effect and had been
enforced prior to the election was destroyed when it was brought out on cross-
examination that most of these employees merely had been regarded as terminated
because of their failure to come to work-in effect, their disappearance.
Further, in support of his contention that the rules always had been in effect,
Prince alluded to a manager 's manual or handbook prepared by the Company's
main office in Portland , Oregon. When this book finally was produced , the work
rules found therein were only general in nature and some of them actually were
inconsistent with those posted . While the manual does provide for variations in
particular plants, it does not support the contention that it contained the rules as
posted.
Prince says that he learned most of the rules when they were told to him when
he was hired . As far as rule 3 was concerned , that one came into effect only when
the Company started production in 1963. He justified this rule with the observa-
tion that any employer would expect its employees to perform their-duties. Rule
4, he says, was promulgated at the request or instruction of Respondent 's insurance
company and the garnishment rule had always been in effect. Although, when
referring to the garnishment rule, he said it was contained in the manual, a ref-
erence to the manual discloses that the rule there is different from that posted.
The manual requires that a garnishment be satisfied prior to answer date while the
posted rule requires that it be satisfied or settled "within twenty-four hours after"
service. Prince is inconsistent in his testimony about the promulgation of the
no-solicitation rule. At the beginning he said that it was included on his lawyer's
telephoned suggestion , which was about a week or 10 days before the election.
Later he testified that it had been promulgated but not enforced about 6 or 8
months prior to the hearing, thus fixing the date at about May or July of 1965,
months before his lawyer became engaged in the formulation of the wording for
posting.
When Prince was recalled near the close of the hearing, he testified that he was
unable to say that he ever wrote out the rules. He testified further that there were
degrees of dereliction with respect to failure to perform assigned duties and that
these would vary with their relative gravity as well as the employees general rec-
ord. He was unable to testify that his foremen actually told employees about
the rules but said that they had been instructed to do so. The rules also were
discussed at supervisors ' meetings , particularly when the happenings of an accident
was reviewed.
1828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Whitaker testified that at the time of hiring he told employees that
they were expected to report for work on time; if they were not coming in, to
call an hour before work time; if an employee was to be late or was late 3 days in
a certain period he was subject to dismissal; and an employee who failed to report
without calling in and failed to work on that day, would be discharged. At first he
testified that there was nothing in the posted rules which had not been in effect
prior to posting but later, after a leading question, he said that he did not remember
the no-solicitation rule. On cross-examination, when asked to repeat the rules he
relayed to employees upon hiring, he recited that (1) an employee was required
to call in an hour before his shift if he is unable to work on any day, (2) an
employee who was late three times within a 90-day period is subject to dismissal,
(3) safety rules and restrictions against smoking within the line had to be obeyed.
He avoided a question whether he had any document which informed him about
existing rules but asserted that they were the same as those posted. In response
to a testing of his memory he said that he had written the rules in a steno book,
that they were the same as those posted and that, except for the no-solicitation
rule, they had been given to him when Prince hired him. He was unable at first
to remember the time when he wrote them out or the occasion which caused him
to do so. Later he oscillated between saying that he wrote them down when Prince
told him about them and that he wrote them down on a later date which he does
not remember. His practice with respect to the rules was to inform an employee
about them at the time of hiring.
He was recalled near the close of the hearing for the purpose of complying
with the direction to produce the steno book. He was unable to produce it. He
said that he had looked for it but could not find it. He testified also that it had
been his practice to hold the steno book in his hand and use it while instructing
new employees about the rules. This alleged practice was contrary to testimony
given to the effect that he used no book or notes while talking during a hiring
interview. During this portion of his testimony he at one time insisted that the
rules as posted were substantially the same as those prior to posting but later
admitted that the no-solicitation rule had not been in effect. His testimony was
garbled with respect to failure to perform assigned duties and written notices and,
it seems to me, that the provision for written notices finally was admitted by him
as appearing for the first time in the rules as posted. He was unable to recall
whether he told employees of the consequences to follow upon violation of safety
instructions.
William Taylor, a present employee, was called by the Respondent. He testified
that when he was hired he had a talk with Supervisor Whitaker who informed
him of the rules- (1) if a person had to be off, he was to call in before hours; (2)
if an employee was late or if a garnishment against him was served and he failed
to have it released within 24 hours he would be discharged. In answer
to a leading question be said that if an employee was unable to report for work,
he was required to call in at least an hour ahead, of time and if he did not, he
would be discharged. On cross-examination he testified that Whitaker had nothing
except his application in his hand while talking to him during the hiring conversa-
tion and that there was nothing on the desk. Whitaker did not read from any book
or paper while talking to him. He saw a copy of the rules posted after the election
and some of them were new ones but he does not remember which were.
Perry Bryant, another present employee, was called by the Respondent. He was
hired by Supervisor Prince. At the time of the hiring Prince informed him of
rules-that (1) he was not to be late three times during a 90-day period without
calling in an hour before the work shift; (2) if he failed to call in, he would be
dismissed; (3) if a garnishment against him was not released within 24 hours
he would be discharged. He did not know of 'any employees who were discharged
for violating the rules prior to the posting. On cross-examination he was very
indefinite about who was in the room or what was in the room at the time he was
hired. All that he was able to remember was that he had filed an application and
had been told what he had testified about the rules
Bobby Blakely, another present employee called by the Respondent was hired
by Supervisor Prince in June or July of 1964. At the time of hiring Prince informed
him of the Company's policy to the effect that-(1) if he had to be away from
work, he was to call in; (2) if he did not call in he was subject to dismissal; (3)
if he was late three times in a month without a legitimate excuse he was subject
to dismissal; (4) if a garnishment against him was served, there was a definite
time within which to have it released or he would be discharged. A garnishment
EVANS PRODUCTS COMPANY 1829
was served against him on one occasion but he does not remember how long he
was allowed to have it released. Except for the application blank he does not
recall that Prince had anything else in his hands and does not remember Prince
reading from any books at the time he was informed about rules.
Otho Lee Branch, another present employee, called by the Respondent, had been
employed there for about 6 months. He was hired by Supervisors Jones and
Randall. At the time of hiring he was told (1) that if he was late and failed to call
in, he would be laid off; (2) if a garnishment against him was served, he was
required to have it released within 24 hours or be discharged; (3) if he was late
three times within 90 days, he would be discharged. He remembered nothing
else. He saw the list posted after the election and, on its being shown to him,
he said, "The only thing, this is new rules-I mean some of this is new rules, and
it don't have the same thing on it. He told me he rewrote them ourselves." On
being interrogated further he said there was nothing new in the rules, " . . . only
different, what he told me."
Wilbur Jones, a supervisor, testified that the reason the rules are being followed
strictly now is not because they have been posted. They had been followed prior to
posting. Although he had a list of the rules at the time that he was giving testimony,
which was the list on the bulletin board, he did not have this list before it had been
posted. He had been using a list containing rules that Prince had given him when
he was hired. At the time of hiring Prince actually did not give him a "list" and he
did not write down the rules as Prince was giving them to him. He really does not
need a list for he has them memorized. When reminded that he had testified that he
had a list, he said "I don't go by this list when I hire anybody now." He admitted
that he did not have a list when he hired Amos and does not remember whether he
told him about all the rules or not. He justifies his having the rules "in his head"
despite the fact that Prince informed him of them on only one occasion by saying
they were read during group meetings of employees and supervisors. He has no
recollection of a no-solicitation rule.
Supervisors Dennis Miles Cothran and Jack Gosney were called next. Their testi-
mony was concerned generally with the Mayo discharge treated below and was not
related to the rules.
In reflecting on all this testimony, both the testimony to the effect that the rules
were not in effect prior to the posting and that in support of the contention that
they were in effect, I am definitely convinced that Respondent, prior to the posting,
had absolutely no definite rules capable of uniform enforcement and that such rules
as it had were haphazard, ad hoc, and applied only when or as a particular situa-
tion might dictate at a particular time. I am convinced further that while, at the
time of hiring, some employees might have been told by some hiring officials of
various things that they ought to do or ought not to do, they were not instructed
uniformly and some were not instructed at all. I am convinced also that, with the
advent of the organizational campaign, the Respondent became aware of the fact
that it was operating under this loose and haphazard procedure and recognized its
need for rules. It hastened to promulgate such rules to forestall the need to bargain
about them in the event of the selection of the Union. It found itself in the predica-
ment, as advised correctly by its attorney, of being unable to post the rules during
the campaign. Finally, when the campaign was over, it promptly posted them resort-
ing to the feigned justification that they always had been in effect and it imposed
in them a new stringency and severity in retaliation against its employees because
of their organization campaign which culminated, as it no doubt had feared, in the
selection of the Union as bargaining representative.
E. The Amos, Stephenson, and Brown discharges
These discharges, it will be recalled, are the ones stipulated by the Respondent
to have been because of the claimed violation of the posted rules. That being the
case, since I have found and concluded that the rules as posted had not been in
effect prior to the union election and had been posted in retaliation for the organi-
zational activities and the selection of the Union as bargaining agent, it might be
held, without more, that the discharges were retaliatory and an interference with
these employees in the exercise of their rights guaranteed in Section 7 and discrimi-
natory for the purpose of discouraging membership in the Union. Radio Officers'
Union v. N.L.R.B., 347 U.S. 17, 48-52. I believe, however, that it is desirable that
I examine more extensively into the facts of these discharges and make more
explicit findings related directly to them. More particularly, I regard it as desirable
1830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to determine whether the alleged reasons for discharging these individuals were
merely pretextual or whether the real reasons were related to the organization and
selection of the Union.
In this particular case, I do not regard as absolutely essential a showing that the
Respondent had an actual awareness of union activities on the part of Amos,
Stephenson, and Brown. Section 8(a)(3) imposes no such requirement as to par-
ticular employees who may be discharged. It is sufficient if the discharges are
intended "to encourage or discourage membership in any labor organization." The
actions against these employees came so close on the heels of the Union's selection
by the units involved that they can and should be regarded, if the discharges were
pretextual, as actions directed against all employees as a group because they had
selected the Union and that the objective was to interfere with, restrain, and coerce
all employees in the exercise of protected rights and for the purpose of discourag-
ing membership in the Union. Radio Officers' Union v. N.L.R.B., supra, 51.
(1) Kenneth Amos: He had been sick during the weekend before and on Octo-
ber 25 and 26, 1965. He was confined to his home and did not leave it at any
time during this period. Having no telephone, he arranged with John Cole, a friend
who had come by his house to exchange some reading material , to telephone his
supervisor, Wilbur Jones , to inform him he was sick . He arranged also with another
friend, Percy Barnes, to notify another supervisor, Jackson, that he would be off.
When he returned to work on October 27, 1965, he found his card missing from the
rack and his immediate supervisor , who had admitted to him that he had been
notified of the illness, told him that Wilbur Jones had pulled his card on Monday.
Cole corroborated his testimony that he had informed Jones that Amos was ill
and he related at length his conversation with Jones in which the reasons for
Amos' absence were discussed in detail and the probable time of Amos' return
was explored . In his testimony at the hearing Jones admitted that someone did call
in about Amos on the second day that the latter was out. As pointed out by Amos
in his testimony on cross, it is a proper inference that his friend spoke to Jones
because he did not know Jones but became aware of his name after talking to him.
Amos had been absent from work on prior occasions and, on those occasions,
when he returned to work, he would give a verbal excuse for his absence and the
excuses always had been accepted . The situation was different this time. Following
Jackson 's suggestion that he ought to speak to Wilbur Jones about the lifting of
his card from the rack he had to wait some time before being able to talk to him.
Jones asked him whether he knew anything about the rules and whether he under-
stood them . Amos replied that he did. Jones then asked him where was his doc-
tor's certificate to which he replied that he did not have the money to go to a
doctor. Jones then referred him to Prince. Again, after an interval of waiting, he
was able to accost Prince , who refused to talk to him , saying that he had quit.
Amos replied that he had not quit but was reporting for work. Prince rejoined
only that he was interpreting Tennessee State law.
Amos had to return 2 weeks later to get his separation card and pay. This
separation card strangely is dated November 23 (or 25?), 1965, obviously incor-
rectly. The legend on it, for the Tennessee Department of Employment Security,
says, "On November 23 (or 25?), 1965, we ceased to employ Kenneth Amos
. " It stated further as the reason for separation , "Voluntarily Quit" and the
explanation given for this, was, "Employee did not call in for two days and did not
give notification that he would be off." This document , prepared after Amos
returned to work following his 2-day illness and dated almost a month later, is
false on its face.
Supervisor Jackson was not called to testify with respect to the Amos termination.
Supervisor Wilbur Jones was called . He admitted Amos had been absent on a num-
ber of occasions but was unable to recall how many. He admitted that someone
had called in to tell him that Amos was sick but said that Amos already was in the
process of being discharged. Despite the fact that the separation notice in evidence
is dated in November , he testified that it was typed on the day that Amos was
discharged (he was confused whether it was Tuesday or Wednesday) after Amos
had been out of work for 2 days . He denied that Amos had been given the impres-
sion that oral excuses for absences would be acceptable and says that he had
warned him that if he was out again he had better call in or bring in a doctor's
certificate saying that he was sick . He was unable to remember how many times
he told this to Amos or how many times Amos had been absent on previous
occasions . Although he had testified that Amos (and other employees ) had been
EVANS PRODUCTS COMPANY 1831
warned that he would receive two warnings for being absent without calling in
and had been told that on the third time he would be discharged, he could not
establish the number of times that Amos had been absent without calling in.
Having observed Amos, Cole, and Jones on the witness stand and having con-
sidered all the testimony given by them as well as the separation notice prepared
by the Respondent, I am convinced that Amos would not have been discharged
because of his enforced absence due to illness if Respondent's plant had not been
unionized. His discharge was merely a crackdown waged solely because of the
union activity in the plant.
(2) Harvey Stephenson: Harvey Stephenson was discharged October 20, 1965.
He was forced to stay home from work on the 19th because of his wife's illness
and the necessity for taking her to a doctor. He telephoned the plant from the doc-
tor's office and informed the secretary who answered the phone that he was taking
the day off because of his wife's illness. When he returned to work on the next day
and found his card missing, he was referred by his foreman to another supervisor,
Ray Whitaker. Whitaker told him, "I can't use you any more." Stephenson expostu-
lated that he had a doctor's statement to show where he had been. This did not
do him any good. He was told that the Company needed a man that was "going
to be here at all times." His testimony was supported by receipts from two doctors
to whom he had taken his wife.
The single day's absence was no different from prior absences. On two prior
occasions he had had to go to a doctor because of a knee injury. On a third
occasion he had gone to the health department for an infected gland and on a
fourth occasion he had gone to a doctor because of a shoulder injury. On three
occasions, prior to the last, he had presented doctors' certificates to Leon McCarter,
his foreman, evidencing his illnesses . He had never been told that he had to call in
before the shift began if he was not going to work on any particular day. On two
other occasions he informed his foreman in advance. Every time he telephoned,
it was during the day and not before the beginning of the work shift. When he
telephoned he spoke to a secretary of the Company. The practice seems to have
been accepted. His practice of speaking to a secretary instead of to his foreman
arose following the first time he had telephoned and sought to be connected with
a foreman without success.
Foreman Leon McCarter was not called to rebut the testimony about Stephen-
son's relations with him. Supervisor Ray Whitaker was called. He testified that a
rule given to Stephenson by him at the time of hiring was that an employee had
to call in an hour before working time if he intended to be out for the day and
that if he failed to come to work without calling in he would be discharged. (This
had been anticipated and denied dung Stephenson's testimony.) Whitaker said
that the occasion for Stephenson being discharged was not the first time that he
had violated the rule. Although he said that he had warned him on prior occasions
that he would have to follow the rules or action would be taken against him, he
was unable to remember when this had happened. He did admit, however, that
Stephenson told him he had to take his wife to the doctor but he denies having
been shown the certificates. It is hardly likely that Stephenson, who had the cer-
tificates, would not have shown them to him.
I have found, as noted elsewhere, that Whitaker's testimony with respect to the
giving of rules to employees on hiring is not to be accepted. I find here that the
testimony given by Stephenson is reasonable and convincing and, when laid along-
side Whitaker's, it is to be credited. It always had been the practice to accept doc-
tors' certificates or other reasonable explanations for failure to report to work.
Suddenly, right after the union election, despite the fact that Stephenson had rea-
sonable and good cause for being absent, had telephoned during the workday from
the doctor's office and had returned to work on the very next day, presenting
doctors' certificates demonstrating that he had been to the doctors, his discharge
was a fait accompli before the end of the day of absence.
It is my conclusion that here again this employee was discharged not because
he had been absent on that one day but because the Company was waging its
crackdown against the employees for purposes of retaliation for their selection of
the Union, interfering with them in their exercise of their protected rights and
discouraging membership in the Union.
(3) Richard Brown: Richard Brown came into the case only for the purpose of
testifying about the new rules which had been posted. Unexpectedly, it was stipu-
lated during his testimony that he had been discharged for violating one of the
1832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted rules. The General Counsel promptly moved to amend the complaint to
include him as one of the 8(a)(3) and (1) discharged employees. Respondent's
attorney, during one of his numerous if sporadic gestures of affability, casually
agreed to the amendment despite the fact, as he said, he could "not positively
assert that (Brown) was fired for violating one of these rules." He only "assumed"
so. Later, on being better informed, Respondent's attorney stated on the record
that Brown had been a temporary employee and had not been permitted to vote
in the election. I have no reason not to rely on this statement and conclude, there-
fore, that the Brown discharge requires an analysis going beyond the earlier stipu-
lation. After working on a particular job, he was directed to go to another because
his foreman was finished with him on that job. When he went to the other job a
boy working there asked that he be permitted to work overtime. Brown suggested
that permission be obtained from the boy's foreman. The foreman agreed and
released Brown. Brown then returned to his former assignment. After being asked
what he was doing there, he was told he was discharged. While remedial action
might be indicated even in the case of a temporary employee who is discharged
in violation of any of the provisions of Section 8 of the Act, it is my finding that
Brown had been discharged because there was no more work for him in the par-
ticular job on which he had been engaged and that his referral to other work was
frustrated by his own acquiescence to a fellow employee's desire for overtime. I
believe that the Respondent should be relieved from the stipulation to the effect that
Brown was discharged for violation of the posted rules and that the portion of the
amended complaint relating to him should be dismissed.
F. The Louis Mayo, Jr., discharge
Louis Mayo, Jr., was discharged allegedly because of his misbehavior while
making deliveries to two of Respondent's best customers. He was a truckdriver,
had started at $1.30 an hour and was given a 5-cent increase after being compli-
mented for his work. Dennis Cothran was his foreman.
On October 4, 1965, he went to Cothran and requested that he be excused from
work on the next day because he had to attend a hearing. Cothran denied per-
mission. It is important at this time to note that October 5, the next day, was the
day which had been set for the representation hearing in connection with the
organization of Respondent's plant. It is fair to assume that Cothran and Respond-
ent's other supervisors were aware that this hearing was to be held.
Despite Cothran's denial of permission, Mayo did take off on the morning of
October 5 for the purpose of attending the hearing. His wife telephoned Cothran
at 6:30 that morning and told him that Mayo was ill. When Mayo learned of this
he remonstrated with her for having told him that and called Cothran to tell him
that he was going down to the Labor Relations Board for the hearing. Cothran,
as brought out on cross, said he "already knew that" and instructed him to come
to work whenever he finished at the Board.
Following the hearing Mayo and another employee, Joe Vaughn , who had
accompanied him, returned to the plant. Cothran told Mayo that he was really
disappointed in them, that he and Vaughn were his two best drivers and that he
had had a lot of confidence in them, but they had "put the hurt" on him and had
"left (him) down in a great big way." He stated his resentment that they had
treated him in that manner . After these statements Vaughn was told to leave the
office and Cothran informed Mayo that he had received a complaint against him
from the Thompson Lumber Company. Mayor asked what had happened but he
was told only that he had been disorderly in making a delivery to the Thompson
Company and that company had written a letter received that morning. Mayo
never was shown the letter but was told that if another complaint was made he
would be fired and he was assured by Cothran, ". . . I know you will get another
complaint. You don't even have to worry about that." Mayo's persistent efforts
to see the letter from the Thompson Company always were rebuffed. Another
incident, just 2 days after the hearing, occurred during an encounter with Super-
visor Prince . He had gone to the prefinish department to pick up a piece of lum-
ber. Prince stopped him from entering saying he was a "smart one" and needed
"a good whipping."
Six days after the hearing, on returning from a delivery trip, he was unable to
find his card in the card rack . The shipping clerk suggested that it was in the front
office and that "something must have happened." Going there he met Cothran who
already had Mayo's separation slip and paycheck. Cothran told him that he was
discharged because another complaint letter had been received . This one was
EVANS PRODUCTS COMPANY 1833
from the Russann Lumber Company. Cothran told him that the letter said he did
not want to unload out there but did not show him the letter. Instead , he made a
remark to the effect that the Teamsters, meaning the Union, had started to starve
him and that he ought to let them go ahead and complete starving him. Mayo's
subsequent efforts to see the letters were rebuffed.
Mayo denied engaging in any misconduct or disturbances either at the Thompson
Company's plant or the Russann Company's plant . According to him all that hap-
pened at the former was that because his delivery was delayed by a Thompson
employee he went back into his truck and got his map out for the purpose of
studying certain streets in order to make other deliveries in various new sub-
divisions. After about 45 minutes the lift driver came, there was a mild exchange
of words, the lift was run up, the material was taken off, the receipt signed, and
Mayo backed out of the gate and drove away. At Russann Lumber Company,
Mayo delivered 100 pieces of 40-inch fir during an elapsed time of about 5 min-
utes. As instructed, he drove around to the north side of the tracks where the
forklift was, the material was taken off the truck, the receipt was signed and he left.
On cross-examination an effort was made to show that Mayo had been guilty of
prior infractions involving a wreck, minor damages to trucks, the loss of a piece of
plywood, and the disbursement of $6 for an alleged roadside repair, which $6 had
been called a shortage. All this, however, was not in the end claimed to be reason
for the discharge. The discharge was predicated solely on the receipt of the two
complaint letters filed or, as blurted out by Cothran on redirect examination by
Respondent's attorney when asked as to the reason for getting rid of Mayo, "Just to
pin it down to any reason, no sir."
An employee still working for the Respondent, Joseph C. Vaughn, had accom-
panied Mayo to the representation hearing. He testified, in corroboration of what
Mayo had said transpired when they returned from the hearing, that Cothran
remarked that they had "put the hurt on him" and that he had not expected them
to treat him the way they had because they were his best drivers. He was told to
check out without being permitted to work on that day.
I received, over the objection of the General Counsel, the two complaint letters
on the ground that it is permissible in administrative proceedings to receive evidence
which is of a type on which businessmen ordinarily rely for the purpose of making
business decisions . Such evidence when received is not final, binding, or conclusive.
It is given only such weight as it is entitled to receive in the light of all the other
evidence in the record.
The probative value of these letters was reduced to a nullity in the light of the
testimony given by the supervisors who were involved in Mayo's discharge and
because, on their face, they are only hearsay as to their contents. Neither the writers
nor the persons who could have testified as to what happened at the two customers'
establishments were called. These factors do not negate the general principle that
the letters were of a type on which a businessman might rely. Nevertheless, the gen-
eral course of this Respondent's business suggests that they were most unusual.
Respondent ordinarily did not receive or rely on written communications from these
customers, particularly communications such as these.
Supervisor Dennis Miles Cothran is the one who discharged Mayo. On direct he
testified as to the receipt of the two letters. He said he called the first one to Mayo's
attention and, when he received the second letter, he informed Mayo that another
complaint had been received and because of this he had to discharge him. It was
brought out on cross that an office employee had brought the letters directly to him
although the first was addressed to the Respondent without designation of any indi-
vidual addressee and the second was addressed personally to Jack Gosney. Despite
the fact that the second letter was addressed to Gosney, it appears that Gosney
never saw it before Cothran informed him that he had discharged Mayo. I regard
this as most unusual. The direct transmission to Cothran and not to Gosney of such
a personal letter suggests to me that more was known among Respondent's manage-
ment about the manner in which it came to be written and mailed than was brought
out in the hearing.
Cothran never before had received a complaint in writing about employees. Nor-
mally complaints about employees came by telephone. This was true both before
and after the Mayo incident. Cothran at first testified that he had shown Gosney the
first letter (not the one addressed personally to Gosney) but, in the same breath, he
said , "I'm not sure though." Although it was not his practice to confer with Gosney
every time he discharged anybody, the Mayo discharge became a subject of discus-
sion between him and Gosney. Despite Mayo's protests to Cothran when these let-
ters were directed to his attention, Cothran failed to communicate with either of
1834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the people who had written them. He was unable to testify whether Gosney com-
municated with them. All that he admits doing following Mayo's attempt to explain
what had happened at the two establishments involved was that he told Mayo that
a complaint had been made and it would not have been made if he had not done
something wrong. He concedes that the receipt of the complaints was regarded by
him as having Mayo "nailed" for the purpose of getting rid of him. When an attempt
was made to bring out that Cothran had known at the time when he received the
first letter that Mayo had gone to the Board's office to attend the hearing he became
flustered and stated finally, ". . . (I)t must have been two days to a week, approxi-
mately, I imagine, sir. It was dated-I think it was dated October 4. I am not sure "
It should be recalled that the Board's hearing was on October 5. It is admitted that
Mayo never was shown either of the two letters.
Supervisor Jack Gosney then was called to testify. He testified that following
receipt of each of the letters he telephoned and spoke to the writers of these letters.
(I regard this as an effort to neutralize Cothran's testimony that he had not spoken
to the writers about the contents of the letters. It is to be recalled that Cothran tes-
tified he had made the decision to discharge Mayo before showing the second letter
to Gosney.) Gosney never asked Mayo about the contents of the letters and admits
that he did not ask Cothran what Mayo had said about them. It was also brought
out from Gosney that the usual and normal way of transacting business with the
two companies which had written the complaints was by telephone-"95 percent of
it ." He talked to them daily and the only written materials exchanged con-
sisted of a documentation related to orders and shipments.
There is no need and it probably would be improper for me to speculate that
Respondent had contrived to have the complaints made in order to justify Mayo's
discharge. Respondent did know, both before and after the Board's hearing, that
Mayo took off the morning of October 5 to testify at that hearing and that this
testimony was to be in support of the Union's petition. Assuming that the letters
were written in good faith and that there had been some disorder at the establish-
ments of Respondent's two customers, I have concluded, nevertheless, that Mayo
was discharged for his activity in support of the Union and because he went to give
testimony at the Board hearing. I am so persuaded because of the callous disregard
by both supervisors of Mayo's protests as to what actually had happened at the
establishments involved, their refusal to show him the letters, Cothran's quick
seizure on them as a reason for discharging Mayo, the unusual fact that complaint
letters were written in this single instance, Cothran's failure to communicate with
the writers of the letters to ascertain all the facts, and the fact that two longtime
customers both threatened cessation of business with Respondent because of a single
alleged act of misbehavior. It seems quite clear to me that Respondent's supervisor's,
having been aware of what Mayo had done in furtherance of his right to engage in
activities in support of collective bargaining, seized upon these two complaints as a
pretext for discharging him.
With respect to the amended allegation to the effect that Mayo was discharged in
violation of Section 8(a)(4) of the Act, I do not regard as material that it became
unnecessary to receive his testimony at the representation hearing. It is sufficient
that he attended it for the purpose of giving testimony. This being the case he
became entitled to the protection of the section.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Labor-Management Relations Act of 1947, as amended.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By promulgating, posting, and keeping in effect the rules contained in the
notice posted on or about October 20, 1965, in retaliation against its employees for
selecting the Union as their collective-bargaining representative, Respondent inter-
fered with, restrained, and coerced and continues to interfere with, restrain, and
coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act
and it thereby has engaged and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By promulgating and continuing to enforce said rules and regulations follow-
ing the selection by its employees of the Union as their collective-bargaining repre-
sentative and thereby changing existing terms and conditions of employment of its
employees without previously notifying, consulting, and bargaining with the Union,
Respondent did fail and refuse and continues to fail and refuse to bargain collec-
tively with the representative of its employees as to rules and regulations governing
EVANS PRODUCTS COMPANY 1835
The terms and conditions of their employment and it thereby engaged and is engag-
ing in an unfair labor practice within the meaning of Section 8 ( a)((5) of the Act.
5. Respondent , using as a pretext for discharging Kenneth Amos and Harvey
Stephenson their alleged violation of said rules and regulations , did discharge said
,employees because the Union had been selected as bargaining representative for its
employees and it did so as a reprisal against all its employees and as a threat to all
its employees for having engaged in collective -bargaining activities and for so select-
ing the Union and it thereby interfered with , restrained , and coerced them and is
interfering with, restraining , and coercing them in the exercise of the rights guaran-
teed to them in Section 7 of the Act and it thereby and in that manner has discrimi-
nated in regard to the hiring and tenure of employment of Kenneth Amos and
Harvey Stephenson , for the purpose of discouraging membership in the Union, all
unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act.
6. By discriminatorily discharging Louis Mayo, Jr., because of his activity in sup-
port of the Union and for having attended a hearing called by the National Labor
Relations Board in connection with the representation petition of the Union, the
Respondent thereby sought to and did discourage membership in the Union, thus
engaging in unfair labor practices within the meaning of Sections 8(a)(4), (3), and
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
8. Richard Brown was a temporary employee, he had completed such work as
Respondent had for him and was terminated following such completion . He was not
.discharged discriminatorily in violation of any section of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
operations of the Respondent described in section III, A , above, have a close, inti-
mate, and substantial relationship to trade and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce. °
THE REMEDY
I, having found that the Respondent has engaged and is engaging in unfair labor
practices in violation of Section 8(a)(1), (3 ), (4), and ( 5) of the Act, it should be
directed to cease and desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. It should be required to rescind forthwith the
rules unilaterally promulgated and posted on or about October 20 , 1965. It should
be required to meet with and bargain collectively with the Union in the event that
it desires to promulgate and make effective new rules and regulations governing the
terms and conditions of employment of its employees . Upon request of the Union,
it should be required to bargain collectively with it concerning rules and regulations
governing the terms and conditions of employment . It should be required to offer
employees Kenneth Amos , Harvey Stephenson , and Louis Mayo, Jr., full reinstate-
ment to their former or substantially equivalent positions without prejudice to senior-
ity and other rights and privileges , and make them whole for any loss of earnings
they may have suffered by reason of the discrimination against them by payment to
them of such sums of money as shall be equal to what they would have earned as
wages from the date of the discrimination against them to the date of offer of rein-
statement , less interim earnings , and with interest , all in a manner consistent with
Board policy as set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co ., 138 NLRB 716.
Respondent should be required also to preserve and make available to the Board,
upon request , all payroll and other records to facilitate the computation of backpay.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , it is my recommendation that the Respondent, its
officers, agents , successors , and assigns , be ordered to:
1. Cease and desist from:
(a) Discouraging membership in General Drivers, Salesmen and Warehousemen's
Local Union 984, affiliated with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America or any other labor organization , by dis-
charging any employees or by discriminating against them in any other manner in
1836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to their hire or tenure of employment or any terms or conditions of
employment.
(b) Threatening employees with or engaging in any reprisals against them if they
engage in union activity.
(c) Unilaterally promulgating, maintaining, enforcing or applying any rules or
regulations altering existing terms and conditions of employment of its employees by
not notifying, consulting, or bargaining with said Union prior to so doing.
(d) In any other manner, interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage in concerted
activities for the purpose 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 will effectuate the policies of the
Act:
(a) Forthwith rescind the notice of rules and regulations posted on or about
October 20, 1965.
(b) Meet with and bargain collectively with the Union in the event that it desires
to promulgate and make effective new rules and regulations governing the terms
and conditions of employment of its employees.
(c) At the request of the Union meet with it at reasonable times and confer in
good faith with it with respect to any rules and regulations governing terms and
conditions of employment or any question arising with respect thereto.
(d) Offer to Kenneth Amos, Harvey Stephenson, and Louis Mayo, Jr., immediate
and full 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 of earnings they may have suffered by reason of its discriminations against
them as set forth in that section of this Decision entitled, "The Remedy."
(e) Notify the above-named employees, if 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 Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(f) Preserve and make available to the Board or its agents, upon request, all pay-
roll records and other records necessary to analyze the amounts of backpay as set
forth in "The Remedy" section of this Decision.
(g) Post at its plant in Memphis, Tennessee, copies of the attached notice marked
"Appendix."' Copies of the said notice, to be furnished by the Regional Director
for Region 26, after being signed by Respondent's representative, shall be posted by
it immediately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken to assure that said
notices are not altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 26, in writing, within 20 days from
the date of the receipt of this Decision, what steps have been taken to comply with
the provisions herein contained.2
3. That portion of the complaint as amended during the hearing, which is con-
cerned with the discharge of Richard Brown, hereby is dismissed.
'In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words, "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order 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."
2In the event that 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
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
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in General Drivers, Salesmen and
Warehousemen's Local Union 984, Affiliated with International Brotherhood of
BRICKLAYERS UNION NO. 4 1837
Teamsters , Chauffeurs , Warehousemen and Helpers of America or in any other
labor organization , by discharging ' any employees or by discriminating against
them in any other manner in regard to their hire or tenure of employment or
any terms or conditions of employment.
WE WILL NOT threaten employees with or engage in any reprisals against
them if they engage in union activity.
WE WILL NOT unilaterally promulgate , maintain, enforce or apply any rules
or regulations altering existing terms and conditions of employment of our
employees by notifying, consulting , or bargaining with said Union prior to so
doing.
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 labor
organizations, to join or assist the above -named Union or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any and all such activities.
WE hereby rescind the notice of rules and regulations posted on or about
October 20, 1965.
WE WILL meet with and bargain collectively with the Union in the event
that we desire to promulgate and make effective new rules and regulations
governing the terms and conditions of employment of our employees.
At the request of the Union WE WILL meet with it at reasonable times and
confer in good faith with it with respect to any rules and regulations govern-
ing terms and conditions of employment or any question arising with respect
thereto.
WE hereby offer to Kenneth Amos , Harvey Stephenson , and Louis Mayo,
Jr., immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges,
and shall make them whole for any loss of earnings they may have suffered by
reason of our discriminations against them.
EvANs PRODUCTS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
The 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, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee 38103, Tele-
phone 534-3161.
Bricklayers Union No. 4 of Missouri (Masonry Builders, Inc.;
Keystone Masonry Co ., Inc.; Apartment Erectors, Inc.; Dasta
Construction Co.) and Otis Ivory. Case 17-CB-452. Octo-
ber 12, 1966
DECISION AND ORDER
On May 17, 1966, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was 'engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief; and the General Coun-
sel filed an answering brief and cross-exceptions.
160 NLRB No. 139.