F. C. Huyck & Sons

National Labor Relations Board - Board Decisions

Nov 23, 1959

125 N.L.R.B. 271 (N.L.R.B. 1959)

F C HUYCK & SONS 271
interested in the Guild, asking employees who was interested in or discussing the
Guild, asking employees if they had joined the Guild and by asking employees to
keep Respondent posted on the progress of union organization, Respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act within the meaning of Section 8 (a) (1) thereof
N L R.B v Midwestern Instruments, Inc, 264 F 2d 829 (C A 10), decided
March 6, 1959, N L R B v Syracuse Color Press, Inc, 209 F 2d 596 (C A 2), cert
denied 347 U S 966, Edmont Manufacturing Company, 120 NLRB 525, California
Textile Mills, 120 NLRB 1245, and Emma Gilbert, at al, d/b/a A L Gilbert
Company, 110 NLRB 2067, 2071
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations set forth 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
thereof
v THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Actr
It has been found that Respondent has discriminated with respect to the hire and
tenure of employment of Andrew Fuller I shall, therefore, recommend that
Respondent offer Fuller immediate and full reinstatement to his former position
without prejudice to seniority or other rights and privileges See The Chase Na-
Jional Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB
827 4 I shall further recommend that Respondent make him whole for any loss
of pay suffered by reason of the discrimination against him Said loss of pay, based
upon earnings which he normally would have earned from the date of the discrinuna-
tion to the date of the offer of reinstatement, less net earnings, shall be computed in
the manner established by the Board in F W Woolworth Company, 90 NLRB 289
See N L R B v Seven-Up Bottling Company of M'ami, Inc, 344 U S 344
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following
CONCLUSIONS OF LAW
1 Los Angeles Newspaper Guild, Local No 69, American Newspaper Guild,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act
2 Fullerton Publishing Company d/b/a Daily News Tribune, is an employer
within the meaning of Section 2(2) of the Act
3 By discriminating in regard to the hire and tenure of employment of Andrew
Fuller, thereby discouraging membership in a labor organization, Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act
4 By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act, Respondent has engaged 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
[Recommendations omitted from publication 7
4 The sense of this order is that Fuller be offered his fob as county editor , if it still
exists , and, if not, a substantially equivalent position
F. C. Huyck & Sons and United Textile Workers of America,
AFL-CIO. Case No 10-CA-374.6 November 03, 1959
DECISION AND ORDER
On June 25,1959, Trial Examiner W Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that F C
Huyck & Sons, herein referred to as Respondent, had engaged in and
125 NLRB No 34
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was engaging in certain unfair labor practices within the meaning
of Section 8(a) (1) of the National Labor Relations Act and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint in violation of Section 8 (a) (3) of the Act and reconunended
that these allegations be dismissed. Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report and
filed briefs in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs filed by the Respondent and
the General. Counsel, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the exceptions, additions, and modifications noted
below.
1. We agree with the Trial Examiner that the following conduct
of the Respondent constituted interference, restraint, and coercion
in violation of Section 8 (a) (1) of the Act :
(a) Plant Manager La Dow's interrogation of employee Johnson,
characterizing him as the "ringleader" in the Union.
(b) Supervisor Brodrick's statement about the middle of June
1958 to employee Dewitt Kilgore, who had been chosen by the em-
ployees at the plant to represent them on the job evaluation committee,
that, "It looks like I have let the wrong man get on this [job evalua-
tion] committee, since I understand he is organizing labor. I might
as well take you off."
(c) The conduct of Brodrick, several days later, in calling the
employees of the finishing department together and telling them that
he had finally found out who the "little organizer" was, and maybe
they could put a stop to some of this "union mess" that was going on.
Implicit in this statement was a threat of reprisal against any em-
ployees engaging in organizing activities.
(d) Brodrick's remarks several days later, in effect, warning Kil-
gore that he would be discharged if it was determined that he was
organizing for the Union.
(e) Brodrick's statement, about a week later, to all the employees
in the finishing department that "if any of you fellows have signed
union cards and think that you might want to get them back, come
over to my office and tell me. I don't know what I can do to help you
F. C. HUYCK & SONS 273
get them back, but I'll see what I can do." We disagree, however,
with the Trial Examiner's finding that this statement violated the Act
because it constituted a requirement that each employee personally
identify himself as having signed a union card by going to Brodrick's
office. We find that such statement was unlawful only because it con-
stituted solicitation of employees to withdraw from the Union and
an offer to these employees of assistance in effecting such withdrawal.'
(2) The Trial Examiner found, and we agree, that the Respondent
did not violate Section 8 (a) (3) or (1) of the Act by discharging em-
ployee Kilgore on July 24,1958. The Board and the courts have long
recognized that an employer has the right to make and enforce reason-
able rules governing the conduct of employees on company time, even
though these rules may limit to some extent the statutory right of
employees to engage in union or concerted activities 2 Here, the
Respondent had a rule prohibiting employees from soliciting on be-
half of a union during working hours and concededly Kilgore knew
about this rule. The record shows, and the Trial Examiner found,
that Kilgore, who had been active on behalf of the Union, left his
machine and went to the work station of employee Noland on July 22,
1958, and spoke to him for 10 minutes, in the course of which conver-
sation Kilgore sought to elicit Noland's views concerning the Union.
We find that this was, under the particular circumstances of this case,
tantamount to a solicitation on behalf of the Union during working
hours, in contravention of the Respondent's rules, and we find further
that Kilgore was discharged because of this infraction of the rules.
ORDER
Upon the entire record in this 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, F. C. Huyck &
Sons, Aliceville, Alabama, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Threatening its employees with loss of employment, or other
benefits if they engage in union activities, or soliciting them to
abandon the Union, or interrogating its employees as to their union
activities, in a manner constituting interference, restraint, or coercion
in violation of Section 8(a) (1) of the Act.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organization,
1 American Rubber Products Corp., 106 NLRB 73, 78, enfd. as modified , 214 F. 2d 47;
Marathon Electric Mtg. Corp., 106 NLRB 1171, 1201, enfd. 223 F . 2d 338, cert. denied
350 U.S. 981; United States Rubber Company ( Shelbyville Mills ), 115 NLRB 1707, 1710.
2 Doyle 1V. Terry, d/b/a Terry Poultry Company , et al., 109 NLRB 1097, and cases
cited therein.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to form labor organizations, to join or assist United Textile Workers
of America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from engaging
in such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its plant at Aliceville, Alabama., copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by an authorized representative of the Respondent,
be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the Tenth Region in writing,
within 10 days from the date of this Decision and Order, what steps
it has taken to comply therewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent violated Section
8 (a) (3) and (1) of the Act by discharging Dewitt Kilgore on
July 24, 1958, and thereafter refusing to reemploy him.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals,. there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT threaten our employees with loss of employment,
or other benefits, if they engage in union activities or solicit them
to abandon the Union, nor interrogate our employees as to their
union activities, in a manner constituting interference, restraint,
or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
F. C. HUYCK & SONS 275
United Textile Workers of America, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of United Textile Workers of
America, AFL-CIO, or any other labor organization.
F. C. HUYCK Sc SONS,
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
STATEMENT OF THE CASE
This proceeding was heard before W. Gerard Ryan, the duly designated Trial
Examiner, in Aliceville, Alabama, on March 25, 1959, in which the issues presented
were whether F. C. Huyck & Sons, herein referred to as the Respondent, violated
Section 8(a)(1) and (3) of the Act by interrogating its employees, threatening them
with discharge for union activities, soliciting them to abandon the Union, and by dis-
charging on July 24, 1958, Dewitt Kilgore and thereafter refusing to rehire him. The
parties waived oral argument. Briefs have been received from the General Counsel
and the Respondent, pursuant to extension of time on May 11, 1959.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I find that at all times material
herein the Respondent has been and is a New York corporation with plant and
offices located in Aliceville, Alabama, where it is engaged in the manufacture of felt
products. During the 12 months prior to the complaint the Respondent at Aliceville,
Alabama, sold and shipped finished products valued at more than $100,000 directly
to customers located outside the State of Alabama. I find the Respondent is engaged
in commerce within the meaning of the Act and that assertion of jurisdiction is
warranted.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, AFL-CIO, herein referred to as the Union, is
a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The violation of Section 8(a)(1)
All the testimony adduced by General Counsel relating to the 8 ( a) (1) allegations
of the complaint is uncontradicted since Supervisor John Brodrick did not testify and
Plant Manager La Dow did not contradict the testimony of employee M. L. Johnson.
On the day following the first meeting of the Union about the last of April or the
first of May 1958, Supervisor John Brodrick called a meeting of all employees in the
finishing department and told them that he understood they had a union meeting on
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the previous night and that he wanted to know who had attended that meeting.
When no one answered, he said there was no need to answer him for he knew who
had attended the meeting, anyway. Testimony from Dewitt Kilgore concerning the
:above was received only as background evidence and no finding of unfair labor prac-
tice is made on the foregoing since it is outside the 6-month period prior to the
service of the charge upon the Respondent on November 12, 1958.
About June 1, 1958, Plant Manager La Dow interrogated employee M. L. Johnson
by asking him if it was true that Johnson was having anything to do with organizing
the plant and if he was the ringleader. When Johnson replied that he did not know
.about that but that he had signed a union card, La Dow inquired for his reasons.
About the middle of June 1958, Supervisor John Brodrick asked employee Dewitt
Kilgore why they wanted a union. Sometime prior to that conversation a job evalua-
tion committee had been formed at the plant and Brodrick had told the employees
they could select an employee to represent them on the committee. The employees
selected Kilgore. When Kilgore answered Brodrick he gave job security as their main
reason. Brodrick replied they had job security as long as they did their work. Kil-
gore then inquired why employee Henry Black had been fired. Brodrick replied that
Black had been fired for being too old to do the work, and then Brodrick added, "It
looks like I have let the wrong man get on this [job evaluation] committee, since I
understand he is organizing labor. I might as well take you off."
A few days later, Brodrick again called the employees of the finishing department
.together and informed them that he had finally found out who the "little organizer"
was, and maybe they could put a stop to some of this "union mess" that was going on.
Brodrick continued by saying "but in the meantime we want to do what we can for
our little organizer to keep him happy." Brodrick then mentioned his opinion as to
whether a union could help the plant any and compared possible wage increases by
the Company to what the Union might obtain for them.
Several days later Brodrick told Kilgore in another personal conversation, "Witt,
it would make me feel mighty bad to find out that you are the one that's doing this
organizing. I'd hate to lose you. You are one of my best men. If this keeps up,
that may be what happens." When Kilgore replied "not to pull a Henry Black on
me" and if he was going to fire him to do it then and not wait until Kilgore was too
old to get another job, Brodrick answered, "Well, Witt, there's nobody going to get
fired for being for the union."
About a week later, Brodrick told all the employees in the finishing department "if
any of you fellows have signed union cards and think you might want to get them
back, come over to my office and tell me. I don't know what I can do to help you
get them back, but I'll see what I can do." This evidence was adduced by the Gen-
eral Counsel through Kilgore in support of the allegation in the complaint that the
Respondent on or about June 20, 1958, through its supervisor and agent, John
Brodrick, solicited its employees to abandon the Union. The Respondent contends
that solicitation to abandon a union does not constitute an unfair labor practice. In
the context of this situation it is clear that there is more here than solicitation through
discussion and the exercise of free speech to wean adherents from the Union; here
we have a requirement that each man personally identify himself as having signed a
union card by going to Brodrick's office. Such solicitation was and I find to be
violative of Section 8(a) (1) of the Act.
The foregoing interrogation, threats, and solicitation to withdraw from the Union
by the Respondent constitute interference, restraint, and coercion in violation of
Section 8(a) (1) of the Act, and I so find.
B. The alleged discriminatory discharge of Dewitt Kilgore
The complaint alleged that the Respondent on or about July 24, 1958, discharged
and thereafter failed and refused to rehire Dewitt Kilgore because of his member-
ship in and activities on behalf of the Union and because he engaged in concerted
activities with other employees for the purposes of collective bargaining and other
mutual aid and protection. The answer admitted his discharge but denied that it
was for reasons violative of the Act.
Kilgore was hired on August 7, 1957, and discharged on July 24, 1958. During
that time he received three merit increases in pay, the last of which was about 2
months prior to his discharge. Kilgore was employed in the finishing department in
the plant. During his employment he qualified for all production work-fulling,
washing, gigging, drying, and extracting. Kilgore joined the Union in September
1957, and thereafter was an active leader in its activities. He organized meetings,
suggested topics for discussion, and called and attended the three union meetings that
were held. He obtained about 15 signatures to union cards from employees for the
most part at night, on weekends, and during lunch hours or break periods at the
F. C. HUYCK & SONS 277
plant . Kilgore testified that he never solicited for the Union on the job. Super-
visor John Sisty testified that it was generally well known that Kilgore was in favor
of the Union and Plant Manager La Dow testified that there were reports that Kil-
gore was the ringleader in union activities but he had no factual evidence of it.
On July 24, 1958, about 3 p.m., Supervisor John Brodrick went to Kilgore who
was working at his fulling mill and asked him to go to Brodrick's office. In the office,
Brodrick asked Kilgore to sit down, offered him a cigarette, and then said, "I hate to
do this but these are my orders . I have got a letter or memorandum to read to you.
I would like for you to listen." Brodrick then read to Kilgore a written statement
which is in evidence as General Counsel's Exhibit No. 2. The pertinent parts relating
to Kilgore are:
This employee came to us a year ago looking for a job. The job he had was
not steady and he had to live away from his family. He was given a job and
although his work was not satisfactory for several months, his supervisor had
confidence in his ability and gave him encouragement raises in pay.
After several months he was progressing satisfactorily and received addi-
tional raises.
Even though his supervisor had given him every consideration he started
soliciting union membership on company time and interfering with other
employees while at their jobs.
He was advised this was against company policy but did not stop his activities.
He was again warned and admitted he was aware that soliciting union member-
ships and interfering with other employees at their jobs was against company
policy.
After the second warning he continued his activities. This flagrant disregard
of company policy made it necessary to release him.
We want to reassure you again that any employee who is doing his job
properly will not be let go.
The only item questioned by Kilgore with respect to the above was that he asked
Brodrick if that had any reflection on his work and Brodrick replied absolutely not.
The statement was read to all the assembled employees for which Kilgore was invited
!o stay or leave as he chose. Kilgore stayed and read the statement over Brodrick's
shoulder as Brodrick read it to the employees.
Kilgore was aware of the company policy which prohibited solicitation for the
Union or union activities in the plant during working hours. He admitted that at
one time, the date of which he did not recall but sometime in May or June, he was
asked by Supervisor Brodrick if he knew it was against plant rules to solicit during
working hours, and Kilgore replied that he knew that and that he had not done
any, solicitation during working hours.
. Milton Noland, a size control technician, testified in behalf of the Respondent that
about 9 or 9:30 a.m. on July 22, 1958, Kilgore cut off his mill, came to Noland's
desk about 75 feet away, and talked to him about 10 minutes asking what Noland
thought about the Union. Noland observed Supervisor Young in the office looking
out towards Noland's desk and the fulling mills. Young left his office and proceeded
to Noland's vicinity. Noland went to meet Young who inquired if Kilgore's machine
was broken. Noland answered in the negative and when Young asked what Kilgore's
business was at Noland's desk he informed Young that they were talking about the
Union. Kilgore did not deny his presence at Noland's desk nor did he deny that
they talked about the Union. Kilgore stated the reason he went to Noland was to
correct a mistake on a fulling ticket.
Plant Manager La Dow testified that about July 24, Supervisor Brodrick told him
that Supervisor Young had reported that Kilgore had left his work station and had
talked to another employee about the Union during working hours. La Dow testified
that he then reviewed the two previous instances that had been reported and the
rejected exhibit identified as Respondent's Exhibit No. 8 and then directed that the
written statement, above referred to, be prepared (General Counsel's Exhibit No. 2).
The record does not disclose what the two previous instances were to which La
Dow referred. There is testimony, as pointed out above, that in May or June,
Supervisor Brodrick had asked Kilgore if he knew it was against company rules to
solicit for the Union on working time, and that Kilgore answered Brodrick that he
was aware of that and had not engaged in such conduct.
There is also evidence in the record concerning the date of July 24 relating to a
conversation by Kilgore with Size Control Technician Summerall and others at
Summerall 's desk which Kilgore denied . . Kilgore denied any conversation at all
with Summerall on July 24. It is unnecessary to resolve that conflict as a careful
53582S-6O-vol. 125-19
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examination of the record leads to the conclusion that it played no part in La Dow's
decision to discharge Kilgore. It is clear that La Dow, as he testified, based his
decision to discharge primarily on the July 22 incident. I conclude therefore that
Kilgore was discharged by the Respondent because he engaged in union activities
for 10 minutes away from his work station on July 22. Nor do I conclude upon the
state of the entire record, even mindful of the foregoing 8(a)(1) violations of the
Act, as found, that it can be held that the reason for his discharge was pretextual and
that the asserted reason was not the true reason which would be necessary in order
to establish a discriminatory motive. When Kilgore requested reemployment in
January 1959, he was informed that the Respondent would await the outcome of the
hearing herein. I find that he was not refused reemployment for reasons violative of
the Act.
On the basis of the entire record, I find that the General Counsel has failed to prove
by the required preponderance of the evidence that the discharge of Kilgore and
later refusal to reemploy him were motivated by reasons violative of the Act. I shall
therefore recommend that the complaint be dismissed to the extent that it alleged a
violation of Section 8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has engaged in interrogation, threats, and
solicitation of employees to abandon the Union, and has interfered with, restrained,
and coerced its employees in derogation of their rights secured by Section 7 of
the Act, I shall recommend that it cease and desist therefrom.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. United Textile Workers of America, AFL-CIO, is a labor organization within
the meaning of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Victor Chemical Works and James E. O'Connell
Victor Chemical Works and Thomas Dean. Cases Nos. 19-CA-
1574 and 19-CA-1582. Novenzber 23, 1959
DECISION AND ORDER
On June 29, 1959, Trial Examiner Maurice M. Miller issued his
Intermediate Report in these cases, finding that the Respondent had
not violated Section 8,(a) (1) and, 8 (a.) (3) of the Act by discharging
either James E. O'Connell or Thomas Dean, and recommending that
the consolidated complaint be dismissed in its entirety, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
125 NLRB No. 35.