Florida Builders, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1955

111 N.L.R.B. 786 (N.L.R.B. 1955)

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election conducted by the parties in this case. Had the election been
conducted by the Board, we would refuse to conduct another election
for 12 months pursuant to the statutory prohibition in Section 9 (c)
(3) of the Act. I believe that the Board should give full effect to the
policy of that prohibition in this case by refusing to redetermine the
Union's majority status on the basis of the decertification petition
filed by a dissident group of the very employees who 5 months ago
selected the Union as their exclusive bargaining representative.
Accordingly, for the reasons set forth above, I would dismiss the
petition filed herein.
FLORIDA BUILDERS, INCORPORATED and CARPENTERS LOCAL UNION 531,
AFFILIATED WITH GULF COAST COUNCIL OF CARPENTERS, AFFILIATED
WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
AFL. Case No. 10-CA-1881. February 28, 1955
Decision and Order
On June 18, 1954, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel entered into a stipulation setting forth various addi-
tional jurisdictional facts pertaining to the Respondent's operations.
The Respondent also filed a motion to dismiss,' exceptions to the Inter-
mediate Report, and a brief in support of its motion and exceptions.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and finds merit in the Respondent's exceptions.2
1. As found by the Trial Examiner, Plant Superintendent Barrs
asked Kermit Kessel, a foreman, whether he had heard a rumor that
a union was trying to get into the plant. Barrs then instructed Kessel
to report any such rumor he heard. Kessel in fact never carried out
this direction. Relying on the Board's holding in the H. N. Thayer
1 The Respondent moved to dismiss the complaint on the ground that its operations did
not satisfy the Board's juiisdictional standards During 1953 , the Respondent had an
indirect inflow of goods or materials from outside the State valued in excess of $1,000,000.
This amount meets the indirect inflow standard recently announced by the Board in Jones-
boro Grain Drying Oooperatave, 110 NLRB 481. Accordingly , the Respondent 's motion
is denied
2 The Respondent' s request for oral argument is hereby denied because the record and
the Respondent's exceptions and brief adequately present the issues and the parties'
positions
111 NLRB No. 130.
FLORIDA BUILDERS, INCORPORATED 787
Company case on the matter of instructions to supervisors by an em-
ployer,' the Trial Examiner concluded that Barrs' instruction to
Kessel violated Section 8 (a) (1) of the Act. We do not agree.
In the Thayer case, the Board held that an employer's instructions
to supervisors to ascertain and report the identity of prounion em-
ployees constituted a violation of the Act. Here the instruction was
manifestly different. Barrs' instruction to Kessel was at the most
concerned with rumors pertaining to the fact of organization; it con-
tained no overtones whatever looking to the identification of indi-
vidual union adherents. In any event, we do not adhere to the Board's
doctrine enunciated in the Thayer case that an employer's mere in-
structions to supervisors to ascertain information concerning the union
activities of employees is violative of the Act, whether or not the
instructions are accompanied by a direction that unlawful means be
used to obtain the information, and whether or not the instructions
are ever carried out." Accordingly, we find that the Respondent did
not violate the Act by Barrs' instruction to Kessel.
2. We do riot agree with the Trial Examiner's conclusion that the
Respondent discriminated against employees Bytheway, Dorn, and
Smith.
Bytheway, Dorn, and Smith, together with Foreman Kessel, con-
stituted the entire complement of the Respondent's receiving depart-
ment. Bytheway, Dorn, and Smith were unskilled employees, hourly
paid. They worked outdoors unloading cars and stacking raw ma-
terials, such as lumber and water heaters. During inclement weather,
the Respondent, rather than send them home, utilized their services
inside the plant on miscellaneous tasks, such as cleaning up the plant,
driving nails, or helping on the saw.
So far as the record shows, neither Bytheway, Dorn, nor Smith was
a leader in the Union's organizational activities. Bytheway and Dorn
signed cards authorizing the Union to act as their bargaining repre-
sentative, but neither was a member of the Union. The record is silent
as to whether Smith was a union member although he also had signed
an authorization card. -
Whenever it was economically feasible, it was the Respondent's
well-established policy to engage the services of independent con-
tractors to perform various assignments connected with its operations.
On eight or more occasions before the events here in issue occurred,
aH N Thayer Company, 99 NLRB 1122, 1125 ( Member Murdock dissenting on this
point, Member Peterson did not participate in the decision ), enfd. as mod . and rem, 213
F. 2d 748 (C A. 1), cert. denied 348 U. S 883
* In its opinion , the court of appeals did not advert to the doctrine adopted by the Board
in the Thayer case with respect to instructions to supervisors . N. L R. B. v. Thayer Com-
pany, at al , 213 F. 2d 748 (C. A. 1). The Board' s order in the case enjoined the respondent
from instructing supervisors " to engage in surveillance of the union activities of em-
ployees." No reference to this matter appears , however, in the court' s decree
See Blue Flash Express, Inc, 109 NLRB 591, where the Boaid repudiated the notion that
interrogation of employees is per se unlawful.
344056-55-vol. 111-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had entered into such contracts. In September or
early October 1953, the Respondent began to investigate the possibility
of procuring the services of an outside agency to perform the unload-
ing and stacking work then being performed by receiving department
personnel. Early in January 1954, the Respondent's vice president,
Shelton, authorized such a change, and bids were invited. On Janu-
ary 27, 1954, the Respondent accepted the bid of one Oscar Thomas,
and notified Thomas to begin the unloading and stacking work the
next day. On the same day, January 27, the Respondent discharged
Kessel, Bytheway, Dorn, and Smith, informing them that their serv-
ices were no longer needed because their work had been let to an
independent contractor.
On January 28, Kessel, Bytheway, and Dorn inquired whether any
work was available for them. They were told that there was none.
Vice-President Shelton stated again that their discharges resulted
from the letting out of their work to Thomas. The Respondent's
president, Haynsworth, stated at the time that he was considering
subletting all the Company's operations, that he did not need the
money, and that he could just retire and go fishing. In the course of
their remarks, either Haynsworth or Shelton remarked to Bytheway,
Kessel, and Dorn, that "they had chosen their path and must now
abide by it." On this day, January 28, the Respondent received a
bargaining request from the Union. Upon receipt of the request,
Haynsworth assembled all the employees to discuss the matter. As
the Trial Examiner found, the record does not disclose what was said
by anyone at the meeting. So far as the record shows, none of the
discharged employees ever applied for employment after January
28,1954.
Subsequently, during the month of February 1954, the Respondent
hired 16 new employees to perform certain unskilled tasks about the
plant. Some of these tasks had occasionally, during inclement
weather, been performed inside the plant by the receiving depart-
ment employees, but none involved the unloading of cars or the stack-
ing of raw materials on the outside.
Relying on the fact that the Respondent did not rehire Bytheway,
Dorn, or Smith when it hired the 16 new employees in February, and
singling out as "convincing evidence" the January 28 remarks of
President Haynsworth to Kessel, Bytheway, and Dorn, as well as the
fact that Haynsworth assembled the Respondent's employees upon
receipt of the Union's bargaining request, the Trial Examiner con-
cluded that the Respondent discriminatorily discharged, and there-
after discriminatorily failed to reinstate, Bytheway, Dorn, and Smith.
We, however, do not believe that the evidence in the case is sufficient
to support the Trial Examiner's conclusion. The Respondent has not
been shown to have been guilty of any conduct which independently
FLORIDA BUILDERS, INCORPORATED 789
violated Section 8 ( a) (1). Aside from the January 28 remarks of
Haynsworth to Kessel , Bytheway , and Dorn, the Respondent made
no utterance , or took any action indicating hostility to the Union or
to organizational activities of its employees . As for Haynsworth's
remarks, they are at the most, we think , equivocal and inconclusive.
Nor can we draw any inference adverse to the Respondent from the
fact that Haynsworth assembled the Respondent 's employees upon
receipt of the Union 's bargaining request, because, as the Trial Ex-
aminer found , there is no evidence in the record as to what transpired
at the meeting.
The discharged employees, moreover , were not union leaders, or
even union members. Nor is there any independent evidence showing
that the Respondent had knowledge that Bytheway, Dorn, and Smith
were union adherents . Their discharge , it appears , resulted from an
action-the contracting out of their work to an independent con-
tractor-which had been planned some months before organizational
activities began in the Respondent 's plant. The contracting out of
such work , moreover, was not inconsistent with other actions previ-
ously taken by the Respondent . We cannot , therefore, agree with the
General Counsel 's contention that the Respondent discriminatorily
utilized its contract with the independent contractor to rid itself of
union adherents . Nor can we infer a discriminatory motive from the
fact that the Respondent , after the abolition of their jobs, failed to
rehire Bytheway , Dorn, and Smith, although it did in fact hire 16
new employees . For, as set forth above, the new employees were hired
to perform tasks which were only incidental to the regular , abolished
duties of the discharged employees ; and none of the new employees
was assigned to perform any of the duties which Bytheway, Dorn,
and Smith had regularly performed. Furthermore , it does not appear
that Bytheway , Dorn, and Smith even applied for reemployment after
January 28 . Under all the circumstances , therefore , we conclude that
it has not been shown that the Respondent discriminated against
Bytheway , Dorn, or Smith.
In accordance with the foregoing , and in view of the Trial Ex-
aminer's recommendations that the complaint be dismissed insofar as
it alleges that the Respondent violated the Act by conduct other than
that herein discussed , to which recommendation exception was not
taken, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER MURDOCK , concurring in part and dissenting in part :
I concur in this decision insofar as it finds that the Respondent did
not violate the Act by instructing a foreman to report rumors about
the Union . In the Thayer case , I dissented from the majority holding
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therein on the point which this decision now repudiates. It was my
opinion in that case that the Employer did not violate the Act by
instructing supervisors to report union activities because the super-
visors were in no way directed to use unlawful means to obtain in-
formation and it did not appear that the instructions were intended
to encompass the use of unlawful means. For the same reasons I con-
clude here that the instructions of Superintendent Barrs to Foreman
Kessel did not violate the Act.
I dissent, however, from the dismissal of the 8 (a) (3) charges in
this case. I would find, as did the Trial Examiner, that the Respond-
ent discriminated against Bytheway, Dorn, and Smith. Although the
Respondent may have contracted out the work of its receiving depart-
ment for economic reasons, I conclude that the receiving department
personnel lost their employment because of discrimination.
The inference is plain that the Respondent knew or suspected that
the three employees in the receiving department were union adherents.
Organizational activities among the Respondent's employees had
begun in late 1953, and 3 or 4 union meetings were held in January
1954. Bytheway, Dorn, and Smith attended one of the January meet-
ings and signed union authorization cards at the time. The record
clearly shows that the Respondent was concerned with the appearance
of the Union and was attempting to learn all it could about the organ-
ization of its employees. As part of its attempt, a week or two before
the layoff of Bytheway, Dorn, and Smith on January 27, 1954, Super-
intendent Barrs instructed their foreman, Kessel, to report any in-
formation he might acquire about the Union. About the same time,
after a supervisors' meeting around January 20, the Respondent's
field superintendent-according to his testimony and that of the Re-
spondent's production director and a foreman, which the Trial Ex-
aminer credits-asked field foremen whether they had observed any
union activities on the field project. And on the day following the
layoff of the employees in the receiving department, President Hayns-
worth pointedly remarked to Kessel, Bytheway, and Dorn, in obvious
reference to their union adherence, that they had chosen their path
and must abide by it.
The facts here also compel the conclusion that the Respondent could
have transferred the receiving department personnel to other parts of
its operations instead of terminating their employment. When Fore-
men Kessel was notified on January 27 that the Respondent was con-
tracting out the work of the receiving department, Kessel inquired
whether the receiving department personnel could be transferred to
other departments. Again on the morning of January 28, when Kes-
sel, Bytheway, and Dorn discussed their severance with the Respond-
ent's president and vice president, the employees asked to be trans-
ferred. The Respondent told the receiving department employees
FLORIDA BUILDERS, INCORPORATED 791
that a transfer could not be arranged. However, the record, in my
opinion, makes clear that the Respondent needed their services else-
where.
The Respondent admittedly had no complaint about the work of
Bytheway, Dorn, and Smith. The bulk of its employees were engaged
in unskilled duties ranging from handling rough lumber to driving
nails and loading trucks. Previously, it had been the Respondent's
practice when receiving work was urgent to assign plant employees to
help, and when inclement weather prevented outside work, receiving
work was slack, or plant work was heavy, to use the receiving depart-
ment employees in other departments. On the occasions when they
worked in the plant, the receiving department employees performed
cleaning duties, pounded nails, and helped attend the saws. At the
time Bytheway, Dorn, and Smith were laid off, according to the cred-
ited testimony of Kessel, the Respondent was "shorthanded." At that
time the fabrication department was unable to furnish employees to
the receiving department and its foreman told Kessel he needed five
more men for fabricating work; the cabinet department was unable
to loan employees because it was busy, working 6 days a week, 9 hours
a day. Within the month following the layoff of the receiving depart-
ment personnel the Respondent employed 16 new employees to per-
form unskilled labor. Thirteen of these new employees were hired
as helpers, 2 as general laborers, and 1 as a yard cleanup man. Ten
of the helpers were hired at the same wage rate the receiving depart-
ment employees had been earning. It thus appears that although the
Respondent needed employees for work which Bytheway, Dorn, and
Smith could perform, it preferred to hire untested persons rather than
transfer the receiving department employees who had demonstrated
their reliability and competence in the Respondent's employ and who
had received some experience in plant duties. In my judgment, the or-
dinary employer, acting in good faith and motivated by business con-
siderations, would not act in such a fashion.
The above circumstances convince me that the Respondent discrim-
inated against Bytheway, Dorn, and Smith. I would, therefore, adopt
the Trial Examiner's finding that by such conduct the Respondent vio-
lated Section 8 (a) (3) of the Act.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, as amended (29 U. S. C. Supp. 5, Sec. 141, et seq.), herein called
the Act, is based upon an original charge filed on January 29 , 1954, and amended
charge filed on March 17, 1954, by Carpenters Local Union 531, affiliated with Gulf
Coast Council of Carpenters , affiliated with United Brotherhood of Carpenters and
Joiners of America , AFL, herein called the Union , against Florida Builders, Incorpo-
rated , herein called Respondent . Pursuant to aforesaid charges, the General Coun-
sel of the National Labor Relations Board , herein separately designated as General
Counsel and the Board , issued a complaint on March 17 , 1954, alleging that Florida
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Builders, Incorporated, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act.
Copies of the charge, the amended charge, and the complaint were duly served upon
the Respondent.
With respect to unfair labor practices, the complaint more specifically alleges in
substance that Respondent: (1) On or about January 20, 1954, by and through Vice-
President Shelton instructed its supervisors to discharge any employees whom they
learned to be members of or sympathetic towards the Union; (2) by and through Plant
Superintendent Wayne Barrs interrogated its crew foreman as to the union member-
ship and sympathy of its employees and directed the crew foreman to report the union
sympathies and membership of any employees sympathetic toward or members of
the Union; and (3) on or about January 27, 1954, discriminatorily discharged and
thereafter failed and refused to reinstate its employees, Alfred E. Bytheway, Donald
E. Dorn, and Keith Smith, because of their membership in and activities on behalf
of the Union.
The Respondent filed an answer to the complaint denying jurisdiction of the Board,
denying that the Union is a labor organization within the meaning of Section 2 (5)
of the Act, and denying all allegations of unfair labor practices.
Pursuant to notice to all interested parties, a hearing was conducted at Tampa,
Florida, on April 22 and 23, 1954, before the Trial Examiner duly designated by the
Chief Trial Examiner. All parties were represented by counsel, participated in the
hearing, and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues involved.
Prior to introduction of evidence at the hearing, counsel for Respondent filed a
written motion to dismiss the complaint, which at the close of the hearing was sup-
plemented and renewed. Ruling upon the motion was deferred. In substance, the
alleged grounds for dismissal are: (1) Failure of the complaint to allege facts con-
stituting unfair labor practices; (2) lack of jurisdiction in the Board to hear and deter-
mine the issues involved; and (3) insufficient evidence to support a finding of any un-
fair labor practices. Finding that the complaint is sufficient to state a cause of action,
and by reason of the findings hereinafter set forth, the motion to dismiss is now
denied.
At the close of the hearing, all parties were afforded an opportunity to argue orally
upon the record, and to file written briefs and/or proposed findings and conclusions.
All parties waived oral argument. Motion by General Counsel to conform the
pleadings to the proof with respect to minor matters such as spelling of names, dates,
etc., was granted without objection. Written briefs filed by General Counsel and
counsel for Respondent have been given due consideration.
Upon the entire record in this case and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Florida Builders, Incorporated, is a Florida corporation, having its principal office
and place of business at St. Petersburg, Florida, where it engages in the prefabrication,
erection, and sale of dwelling houses entirely within said State. Total sales during
the year 1953 amounted to approximately $3,500,000. Total expenditures during the
same period amounted to approximately $2,000,000, of which approximately 71 per-
cent ($1,400,000) was paid to local suppliers, 23 percent ($460,000) to local subcon-
tractors, and the remaining 6 percent ($120,000) to suppliers outside the State of
Florida. Purchases from local suppliers included Douglas fir and pine lumber valued
at approximately $1,200,000, which originated outside the State of Florida and was
transported into said State by instrumentalities of interstate commerce. Purchases di-
rectly from out-of-State suppliers, valued at approximately $120,000, consisted pri-
marily of hardware and water heaters. The Board has held that any enterprise hav-
ing an indirect inflow of goods and materials from outside the State in excess of
$1,000,000 per annum tends to have such a substantial effect upon interstate com-
merce as to warrant its assertion of jurisdiction on that basis alone in order to effec-
tuate the policies of the Act.' It is, therefore, concluded that Respondent is engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Carpenters Local Union 531, affiliated with Gulf Coast Council of Carpenters, affil-
iated with United Brotherhood of Carpenters and Joiners of America, AFL, is a
1 Dorn's House of Miracles, Inc, 91 NLRB 632.
FLORIDA BUILDERS, INCORPORATED 793
labor organization within the meaning of Section 2 (5) of the Act, admitting to mem-
bership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Operations and management
The Respondent engages in the business of prefabricating, erecting, and selling
dwelling houses. At a manufacturing plant in the city of St. Petersburg, supplies and
raw materials are assembled and fabricated into millwork and house components,
and then shipped to building sites in the area. Final construction and erection of
the prefabricated houses are completed at the site by employees of Respondent under
the supervision of a field superintendent and working crew foremen. In some cases,
independent contractors are employed by Respondent to install masonry work, plas-
tering, trim carpentry, roofing, electrical wiring, plumbing, painting, landscaping, etc.
The record does not indicate that Respondent employed independent contractors at
its manufacturing plant prior to January 1954. Overall administrative functions such
as purchases, sales, financing, accounting, procurement, and production control are
centralized in offices of Respondent at the manufacturing plant. A detailed account
of departmental functions appears in Respondent's answer to the complaint herein.
Supervisory personnel of Respondent include President J. T. Haynsworth, Execu-
tive Vice-President John C. Shelton, Plant Superintendent Louis Wayne Barrs, Pro-
duction Director Frank Smolen, Field Superintendent R. H. McNutt, and a consid-
erable number of departmental foremen and crew foremen.
B. The allegation against Vice-President Shelton
It is alleged in paragraph 6 of the complaint that Respondent, by and through
Vice-President Shelton, instructed its supervisors to discharge any employees whom
they learned to be members of or sympathetic toward the Union.
Samuel Neal Walker 2 testified in substance that on or about January 20, 1954,
he attended a meeting of all supervisors and foremen from the shop and the field
in the office of Vice-President John C. Shelton; that Shelton stated the purpose of
the meeting was to get rid of anyone heard talking union talk; that "if we heard
anyone talking about the Union, or knew of anyone that was talking it up or trying
to organize, to fire him, find some excuse to fire him; it didn't make any difference
what kind of excuse, just to get rid of him; and to look out on the job, stick with
the men, see that they don't get together and talk among themselves, and so forth." 3
Walker testified further that Vice-President Shelton said: "If we saw a stranger
talking to the men and we didn't know who he was, or if we did know it was a union
man, we were to kick him off, kick him out of the project, hit him over the head with
a 2 x 4; Florida Builders would pay the expense if we went to jail, just don't kill him "
Walker further testified that Vice-President Shelton said that "if the Union did or-
ganize the Company, the only thing Florida Builders would do would be just sell
out everything and quit. He said he felt like that is what they would do. He said
he felt like that is what Mr. Haynsworth would do if the Union did take over." 4
Vice-President John C. Shelton credibly testified that weekly meetings of super-
visors were held in his office, but that at no meeting in his presence had there been
any discussion of union activities. He specifically denied all statements attributed
to him by ex-Foreman Walker.
Plant Superintendent Louis Wayne Barrs credibly testified that he was not present
at any supervisors' meeting on or about January 20, 1954, and was not present at
any meeting where union activities were discussed.
Foremen Guinn Dean and Harry A. Williams credibly testified that they did not
attend and were not present at any meeting of supervisors where union activities were
discussed.
Production Director Frank Smolen, Field Superintendent R. H. McNutt, and
Foreman Clower Downs credibly testified that they were present at the supervisors'
meeting in the office of Vice-President Shelton on or about January 20, 1954; that
2 Walker was an erection crew foreman who was discharged by Respondent on January
27, 1954.
3 Walker testified that Production Director Frank Smolen and Field Superintendent
R. H. McNutt also made statements along the same lines.
4In naming those present at the meeting, Walker included Vice-President Shelton, Pro-
duction Director Smolen, Plant Superintendent Barrs, Field Superintendent McNutt, and
Foremen Downs, Dean, Ferqueron, Nash, and Williams.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no discussion of union activities occurred in the office or presence of Vice-President
Shelton; that no one made any of the statements testified to by ex-Foreman Walker;
but that after adjournment of the meeting, and in an adjoining office, Smolen and
McNutt made inquiries of the field foremen whether they had observed any union
activities on the field project.
In view of the overwhelming preponderance of evidence to the contrary, I cannot
find that Vice-President John C. Shelton instructed Supervisors of the Respondent
to discharge employees whom they learned to be members of or sympathetic toward
the Union, as alleged in the complaint. It is, therefore, recommended that paragraph
6 of the complaint be dismissed.
C. The allegation against Plant Superintendent Louis Wayne Barrs
It is alleged in paragraph 7 of the complaint that Respondent, by and through Plant
Superintendent Louis Wayne Barrs, interrogated its crew foreman as to the union
membership and sympathy of its employees and directed the crew foreman to report
the union sympathies and membership of any employees sympathetic towards or
members of the Union. The only evidence found in the record to support this
allegation is the testimony of Kermit K. Kessel, a working foreman in charge of
4 to 6 employees in the receiving department of the plant, who was laid off with his
entire crew on or about January 27, 1954.
Kermit K. Kessel credibly testified that Plant Superintendent Barrs came to him
and inquired whether he had heard the rumor that a union was trying to get in.
Barrs instructed Kessel to tell him about any rumors he received. Kessel testified that
he agreed to do so, but held a mental reservation that he would not do any such
thing, because he himself had already signed a union authorization card and was
not willing to disclose any information. He never reported anything, and was laid
off about 1 week later.
Under the doctrine set forth by the Board in H. N. Thayer Company, 99 NLRB
1122, modified and enforced 213 F. 2d 748 (C. A. 1), I am constrained to find that
instructions given by Plant Superintendent Barrs to Foreman Kessel to report rumors
concerning the organizational activities of employees, whether or not the instruc-
tions were ever carried out, constituted interference, restraint, or coercion of em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act in that (1) they
inject the employer into an area guaranteed by the Act to be the exclusive concern
of employees, and (2) they constitute an attempt to obtain the kind of information
which can be used by the employer for no other purpose than to interfere with the
employees' right to self-organization.5
D. The discriminatory discharges
At its manufacturing plant in St. Petersburg, Florida, under the direct supervision
of Plant Superintendent Louis Wayne Barrs, the Respondent maintained a receiving
department consisting of hourly paid unskilled employees. This working force had
been recently reduced to Kermit K. Kessel (working foreman) at $1.375 per hour
and three workmen, Alfred E. Bytheway, Donald E. Dorn, and Keith Smith at $1 per
hour, all of whom had signed authorization cards in favor of the Union. The prin-
cipal duties of these employees were to unload and store raw materials consisting of
lumber, water heaters, etc., as they were received from suppliers, and from the desig-
nated storage areas to place such materials in process for the fabricating and millwork
departments. During inclement weather when not engaged in their regular duties,
their services were utilized to perform unskilled labor indoors as helpers in the fabri-
cating and millwork departments, such as cleaning up the premises, attending the
saws, and nailing together the component parts of wall sections, trusses, gable ends,
stress-skin panels, and cabinets already cut according to pattern under the supervision
of the foreman in charge of the production-line assembly. In its answer to the com-
plaint, the Respondent has described these departments as being set up on a produc-
tion assembly-line basis requiring very few, if any, skilled workmen other than the
working foremen who lay out and supervise the work. It is not contended by Re-
spondent that any of said employees were incompetent or failed to perform satis-
factorily any of the duties assigned to them.
At the close of the workday on January 27, 1954, without prior notice or explana-
tion, the Respondent laid off or discharged Kermit K. Kessel (foreman), Alfred E.
6 See Standard-Coosa-Thatcher Company, 85 NLRB 1358 ; Cold Spring Granite Company,
101 NLRB 786.
FLORIDA BUILDERS, INCORPORATED 795
Bytheway, Donald E. Dorn, and Keith Smith. Plant Superintendent Barrs delivered
their paychecks, saying that their services were no longer needed, because their work
was being let to a subcontractor. On the following morning, January 28, 1954,
Kessel, Bytheway, and Dorn went to the office of President J. T. Haynsworth and
Vice-President John C. Shelton seeking information concerning their status as em-
ployees and to ascertain the effect of their termination upon future employment and
unemployment compensation. They also requested transfer to some other work in
the plant. On that occasion they observed that railroad boxcars were being unloaded
in the yard by employees of Oscar's Transfer and Storage (a public service enter-
prise). Vice-President Shelton said that Respondent had no complaint about their
work, and that they had been laid off (not fired) because the work had been let to
an independent contractor. He further stated that no other jobs were at the time
available for them. According to the credible and uncontradicted testimony of Kes-
sel, Bytheway, and Dorn, President J. T. Haynsworth made the statement that they
had chosen their path and must now abide by it; that he was considering a subletting
of his entire Company; that he didn't have to operate the plant, and could close up for
the remainder of his life; that he did not need the money, and did not have to work
any more; and that he could just retire and go fishing.6
Kermit K. Kessel credibly and without contradiction testified that on the day pre-
ceding his termination, Shop Foreman Guinn Dean declined to furnish additional
men to assist in the unloading of boxcars, saying that he was short-handed himself
and needed five more men for work in the shop. It also appears from General
Counsel's Exhibit No. 4 furnished by Respondent that during the month of February
1954, 16 new employees were hired to perform unskilled labor at Respondent's plant,
including 10 men at $1 per hour to work as helpers in the fabrication shop. When
interrogated on cross-examination why he did not rehire any of the discharged em-
ployees, Fabrication Shop Foreman Guinn Dean explained that he did not need any
men at the time of their discharge, and that none of them thereafter applied to him
for employment. Dean further testified that prior to their discharge, these men had
at times worked under his supervision inside the plant, but that he had nothing to do
with their layoff or discharge. The list of new men hired in February also included
2 helpers in the cabinet shop, 2 general laborers, 1 helper in the paint shop, and 1
cleanup man in the yard.
Testimony by witnesses for the Respondent tends to show that it was established
policy of Florida Builders, Incorporated, to engage the services of independent con-
tractors when economically feasible and convenient; that in October 1953, Production
Director Frank Smolen recommended that car unloading be done by contract; and
that early in January 1954, he was authorized by Vice-President Shelton to procure
bids and negotiate such a contract. Thereupon, Respondent solicited and received
oral bids from Oscar Thomas d/b/a Oscar's Transfer and Storage to unload lumber
at $60 per car and water heaters at $35 pei car. Nothing to the contrary appearing,
it is clear that duties to be performed by the contractor at these prices were limited
to unloading and placing the materials on the open yard alongside the railroad track.
Acceptance of the bids was consummated on January 27, 1954, when Respondent
notified the contractor to begin work on the next day. On the same date, Respondent
terminated the employment of Kessel, Bytheway, Dorn, and Smith in its so-called
receiving department.
Assuming that Respondent had a right to enter into the foregoing independent
contract, the General Counsel nevertheless contends that Respondent utilized this
transaction as an excuse and subterfuge to get rid of undesirable employees by reason
of their affiliation with the Union. The verbal contract with Oscar's Transfer and
Storage was limited to unloading materials from cars on the yard; whereas, the dis-
chargees also customarily performed additional work in and around the plant. That
other work was available is evidenced by the fact that shortly after their termination,
Respondent hired 16 additional unskilled men to perform types of work customarily
performed by the dischargees. Had they been laid off for lack of work, Respondent
was duty bound to recall them to duty without further application by them for re-
employment. Respondent's failure to recall them when work for which they were
qualified became available indicates a desire to deprive them permanently of em-
ployment. The undenied remarks of President J. T Haynsworth to Kessel, Bythe-
way, Dorn, and Smith concerning the future operations of his business on January 28,
d It was admitted by President Haynsworth on cross-examination that on the same day
(January 28, 1954), he received a letter from the Union demanding recognition, where-
upon lie assembled all employees in a group to discuss the situation. The record fails to
disclose the nature of the discussion.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1954, following their termination, and the assembly of all employees in group dis-
cussion on the same date, when the letter from the Union demanding recognition was
received, is convincing evidence that Respondent was engaging in unfair labor prac-
tices to combat the organizational activities of its employees. I find, therefore, that
Respondent has discriminated and is discriminating in regard to the hire and tenure
of employment of its employees, Alfred E. Bytheway, Donald E. Dorn, and Keith
Smith, to discourage membership in a labor organization, as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, Florida Builders, Incorporated, set forth in section
III, above, occurring in connection with its operations described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent, Florida Builders, Incorporated, has engaged in
certain unfair labor practices by interrogating and instructing its supervisory em-
ployees to obtain and report information concerning the union activities of its
employees, thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, and by discriminating in
regard to the hire and tenure of employment of its employees to discourage member-
ship in a labor organization, it will be recommended that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that on or about January 27, 1954, Respondent discriminatorily
discharged, and thereafter failed and refused to reinstate Alfred E. Bytheway, Donald
E. Dorn, and Keith Smith, it will be recommended that Respondent offer to each of
said employees immediate and full reinstatement to his former or substantially
equivalent position'' without prejudice to seniority or other rights and privileges,
and make each of them whole for any loss of pay suffered by reason of the dis-
crimination against them by the payment to each of a sum of money equal to that
which each of them, respectively, normally would have earned since the date of
discharge found herein to the date when a proper offer of reinstatement is made by
Respondent, less net earnings,8 in each case to be computed on a quarterly basis in
the manner set forth in F. W. Woolworth Company, 90 NLRB 289. Earnings in
one particular quarter shall have no effect upon the back-pay liability for any other
such period. It will also be recommended that Respondent make available to the
Board and its agents, upon request, all payroll and other records necessary to com-
pute the back pay herein awarded.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following.
CONCLUSIONS OF LAW
1. Carpenters Local Union 531, affiliated with Gulf Coast Council of Carpenters,
affiliated with United Brotherhood of Carpenters and Joiners of America, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By interrogating and instructing its supervisors to obtain and report informa-
tion concerning the organizational activities of its employees, thereby interfering
with, restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and employment tenure of its employees,
Alfred E. Bytheway, Donald E. Dorn, and Keith Smith, to discourage membership
in a labor organization, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
7 See The Chase National Bank of the City of New York, San Juan, Puerth Rico, Branch,
65 NLRB 827.
8 See Crossett Lumber Company, 8 NLRB 440, 497-8.
HIGGINS, INC.
Appendix A
NOTICE TO ALL EMPLOYEES
797
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate or instruct supervisors to obtain and report infor-
mation concerning the organizational activities of our employees.
WE WILL NOT discourage membership in Carpenters Local Union 531,
affiliated with Gulf Coast Council of Carpenters, affiliated with United Brother-
hood of Carpenters and Joiners of America, AFL, or any other labor organiza-
tion, by discharging, refusing to reinstate, or in any other manner discriminating
against our employees in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join,
or assist Carpenters Local Union 531, affiliated with Gulf Coast Council of
Carpenters, affiliated with United Brotherhood of Carpenters and Joiners of
America, AFL, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer to Alfred E. Bytheway, Donald E. Dorn, and Keith Smith
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make each of them whole for any loss of pay suffered
as a result of our discrimination against them.
All of our employees are free to form, join, or assist any labor organization, and to
engage in any self-organization and other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such right may be affected by an agree-
ment made in conformity with the proviso to Section 8 (a) (3) of the Act.
FLORIDA BUILDERS, INCORPORATED,
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.
HIGGINS, INC. and ERNEST G. PERNICIARO , PETITIONER and INTERNA-
TIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS,
BLACKSMITHS , FORGERS & HELPERS , LOCAL No. 561, AFL. Case No.
15-RD-66. February 28, 1955
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William W. Fox, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
111 NLRB No. 134.