Frank L. Sample, Jr., Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1957

118 N.L.R.B. 1496 (N.L.R.B. 1957)

1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. All employees at the Employer's stores located at 811 Orange
Avenue and 208 Avenue "A," Fort Pierce, Florida, including head
cashiers, office clerical employees, and all part-time employees work-
ing more than 20 hours per week, but excluding all. other part-time
'employees, all meat department employees, store managers, assistant
store managers, produce department heads, parking lot attendants,
guards, and supervisors as defined in the Act.
C. All meat department employees at the Employer's stores located
at 330 SW. 2d Street and 1500 East Sunrise Boulevard, Fort Lauder-
dale, 2111 North Federal Highway, Hollywood, and 2450 North Fed-
eral Highway, Pompano Beach, Florida, including all part-time em-
ployees working more than 20 hours per week, but excluding all other
employees, the meat department head, guards, and supervisors as
defined in the Act.
D. All meat department employees at the Employer's stores located
at 811 Orange Avenue and 208 Avenue "A," Fort Pierce, Florida, in-
cluding all part-time employees working more than 20 hours per week,
but excluding all other employees, the meat department head,.guards,
and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
Frank L. Sample, Jr., Inc. and Industrial Union of Marine
and Shipbuilding Workers of America , AFL-CIO. Cam No.
1-CA-3140. October 2,1957
DECISION AND ORDER
On February 26,1957, Trial Examiner Robert E. Mullin issued his
Intermediate Report in this proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the Intermediate Report, a copy of
which is attached hereto. The Trial Examiner further found that
the Respondent had not engaged in certain other alleged unfair labor
practices and recommended that the complaint be dismissed with
respect to those allegations. Thereafter the Respondent filed excep-
tions to the Intermediate Report together with a supporting brief.
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 [Members Murdock,. Rodgers, and Bean].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
118 NLRB No. 209.
FRANK L. SAMPLE, JR., INC. 1497
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Frank L. Sample, Jr., Inc.,
Boothbay Harbor, Maine, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Industrial Union of Marine and
Shipbuilding Workers of America, AFL-CIO, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees or by discriminating in any other manner in re-
gard to their hire or tenure of employment, or any term or condition
of their employment.
(b) Conducting polls of its employees as to their preferences on
hours of work or other conditions of employment in such a manner
as to interfere with their right to bargain collectively through repre-
sentatives of their own choosing.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the Industrial Union of Marine
and Shipbuilding Workers of America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or refrain
from any or all of 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.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Morrell Gray and John Robbins immediate and full rein-
statement to their former or substantially equivalent positions with-
out prejudice to their seniority or other rights and privileges, and
make them whole in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy" for any loss of pay they may
have suffered by reason of the Respondent's discrimination.
(b) Preserve and make available to the Board, or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay due.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its shipyard in Boothbay Harbor, Maine, copies of the
notice attached to the Intermediate Report and marked "Appendix." 1
Copies of said notice, to be furnished by the Regional Director for the
First Region, shall, after being duly signed by the Respondent, be
posted by the Respondent immediately upon receipt thereof and be
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that Norman Benner was laid off in violation of Section 8
(a) (3) and8 (a) (1) of the Act.
3 This notice is amended by substituting for the words, "The Recommendations of a
Trial Examiner" the words "A Decision and Order." 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."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor Management Rela-
tions Act, 1947, 61 Stat. 136 (herein called the Act), was heard in `Wiscassett, Maine,
on October 9 and 10, 1956, pursuant to due notice to all parties. The complaint,
issued on September 14, 1956, by the General Counsel of the National Labor Rela-
tions Board, and based on charges duly filed and served, alleged that the Respondent
had engaged in unfair labor practices proscribed by Section 8 (a) (1) and (3) of
the Act. In its answer, duly filed, the Respondent conceded certain facts with re-
spect to its business operations, but denied the commission of the alleged unfair
labor practices.
All parties were represented at the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to
argue orally, and to file briefs and proposed findings and conclusions. The parties
waived oral argument. On November 16, 1956, able and comprehensive briefs
were submitted by the Respondent and the General Counsel.
THE SUFFICIENCY OF THE CHARGE
The Respondent has contended, both at the hearing and in its brief, that the
complaint was not supported by a valid charge. The latter was filed by Mr. McCabe
as regional director of the Charging Union. At the hearing Respondent conceded
that McCabe was not an officer of the Union and it did not contend that the duly
designated officers of the Charging Party had failed to comply with the affidavit re-
quirements of the Act. The Respondent argues, however, (1) that a charge on be-
half of a union may only be filed by an officer of that organization; (2) that in the
event a charge is filed by an agent instead of an officer, there must be proof that
such agent was authorized by the union to take such action; and (3) that such
agent must have complied with the non-Communist affidavit requirements of Section
9 (h) of the Act. There is no merit to these arguments. The Board and the courts
have held that a complaint is not subject to dismissal on the theory that the charge
on which it is based was not signed by anyone authorized to file it. No showing of
such authority is necessary, for anyone may file a charge. McComb Manufacturing
Company, 95 NLRB 596, 597; N. L. R. B. v. Pecheur Lozenge Co., Inc., 209 F. 2d
393, 403 (C. A. 2), cert. denied 347 U. S. 953; N. L. R. B. v. General Shoe Corpora-
tion, 192 F. 2d 504, 505 (C. A. 6), cert. denied 343 U. S. 904; Consumers Power
FRANK L. SAMPLE, JR., INC. 1499
Company v. N. L. R. B., 113 F. 2d 38, 42-43 (C. A. 6); Amalgamated Utility Work-
ers v. Consolidated Edison Company, 309 U. S. 261, 265.1 Consequently, there was.
no need for the General Counsel to prove that McCabe was authorized to act on the
Union's behalf in filing the charges out of which this proceeding arose. (Idem.)-
Furthermore, since McCabe was not a union officer, it was unnecessary that he file
a non-Communist affidavit in conformity with Section 9 (h) for it is only the officers,
and not the subordinates of a charging union who are required to do so. Ekco
Products Company, 117 NLRB 137; cf. N. L. R. B. v. Coca-Cola Bottling Co. of
Louisville, Inc., 350 U. S. 264, 268-269.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation organized under and existing by virtue of the
,laws of the State of Maine, with its principal office and shipyard located at Boothbay
Harbor in that State, is engaged in the building and sale of ships. In the course and
conduct of its business operations it purchases large quantities of lumber, metals,
and other materials and transports them in interstate commerce to its shipyard at
Boothbay Harbor. From this location the Respondent annually sells ships valued
at more than $50,000 which it moves in interstate commerce to States of the United
States other than Maine. Upon these facts the Respondent concedes, and I find,
that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO,
the Charging Party, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
Subsequent to a consent election in which the Union polled a majority of the votes
in a unit made up of the production and maintenance workers at the Boothbay Harbor
shipyard, the Regional Director, on April 2, 1956,2 certified the Union as the collec-
tive-bargaining representative of the employees in the aforesaid unit. Thereafter
the Employer and the Union commenced bargaining negotiations. The Respondent
was represented by a committee, consisting of Mr. Carey, company counsel, Roger
Sawyer, general superintendent, Philip Blake, personnel director, and Thatcher B.
Pinkham, executive assistant to the president.3 In addition to Mr. McCabe, the union
committee consisted of Morrell Gray, John Robbins, and Edward Hardquiste, as
employee members. The last named attended only a few meetings and then quit
the employ of the Company? Gray and Robbins, however, remained on the com-
mittee and actively participated in all negotiating sessions. At a meeting held on
June 14, several national officers of the Union were also in attendance. That same
day the Union called a strike. The work stoppage lasted for over a week and through-
out its course Gray and Robbins were in charge of the picket line at the shipyard
entrances. On June 22, the parties met again and agreed on the final terms of a
contract, as well as a settlement of the strike. Terms of the collective-bargaining
agreement, in draft form, were initialed by Mr. Carey and Mr. McCabe, with the
1 See Kansas Milling Company v. N. L. R. B., 185 F. 2d 413, 415 (C. A. 10), where the
court said "The Act requires a charge to be filed before the Board may issue a com-
plaint. The charge, however, is not a pleading. It merely sets in motion the machinery
of an inquiry to determine whether a complaint shall issue . It has served its purpose
when the Board embarks upon an inquiry. Anyone can file a charge." (Emphasis sup-
plied.) In another case the Court of Appeals for the Fifth Circuit stated: " There is
no requirement that it [the charge] be filed by a labor organization, by the discharged
employee, or even by any employee. Strangers to the labor contract are permitted to
.make the charge." Southern Furniture Manufacturing Company V. N. L. R. B., 194 F. 2d
59, 60-61.
2 At one point in the transcript this date is erroneously given as September 2, whereas
the correct date is April 2. The record is hereby corrected to reflect the latter date.
3A Mr. MacDougal, another member of the supervisory staff, also attended some of
the meetings.
4 In addition to Mr. McCabe, Arthur Lebel, a national representative for the Union,
participated in some of the meetings.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding that the contract would be effective when signed by officials of both
the Company and the Union. On June 29, Mr. Carey forwarded to the national
office of the Union in Camden, New Jersey, a copy of the agreement which Frank L.
Sample, Jr., had executed. After the Union's general executive board had signed the
contract, a copy was returned to Respondent's counsel on July 9. According to
Mr. Pinkham, the Respondent put all rate changes and other provisions of the agree-
ment into effect on that day.
On June 25, the striking employees returned to work. On the evening of June 27,
the union members held a meeting at which they ratified the contract and elected
officers for a newly formed local of the Union.5 Gray was elected financial secretary
and Robbins the chief shop steward. In addition, Donald Northrup and Norman
Benner, both carpenters, were elected president and vice president, respectively. At
this same meeting McCabe asked the employees whether they would prefer to have
the Company cut the noon lunch period from 1 hour to 30 minutes. According to
McCabe, he had requested the shorter period on behalf of the men at the bargaining
session of June 22 and the management representatives had questioned him as to
whether this was the preference of a majority of the shipyard workers.6 At the
union meeting of June 27, the employees unanimously endorsed the proposal that their
lunch period be cut to 30 minutes. Soon after the meeting ended, Philip Blake,
Respondent's personnel director, telephoned McCabe to ask the names of those
elected to office at the meeting. Since the contract provided that the stewards and
certain of the union officers would have greater seniority than other employees in their
respective departments, McCabe raised no question as to Blake's right to this informa-
tion and gave him the names of the foregoing employees and the posts for which
they had been chosen. McCabe also told the Respondent's personnel director that the
employees had voted in favor of a half hour lunch period. Blake's only response
to this statement was that he would have to take the matter up with his superiors.
B. The dispute as to shortening the lunch hour; conclusions with respect thereto
On about June 28, a union committee consisting of Gray, Robbins, Benner, and
Northrup endeavored to meet with Mr. Pinkham to ask why there was a delay in
putting the 30-minute lunch period into operation. Upon finding that he was not
available they sought out Roger Sawyer, general superintendent of the yard. Gray
testified that in talking with Sawyer he (Gray) stated that it was his understanding
that at the bargaining sessions the parties had reached a "gentlemen's agreement that
it [the half hour noon] would be put in effect." According to Gray, the latter re-
plied that although the parties had discussed the question "there was no agreement,
that the agreement had not been signed, and that such matters were up to Mr. Sample
to do as he chose about them." 7 On June 29, McCabe telephoned Mr. Pinkham to
ask why the half hour noon had not been put into effect. The latter replied.that
there was no agreement at to the matter, that the request presented a plantwide
problem and that the Company would have to consider it on that basis.
In a letter dated July 1, 1956, Mr. McCabe wrote to Mr. Blake to inform him once
more of the preference of the union membership for a 30-minute lunch period and
to request that the Company put it into effect at the beginning of the next pay period.
On July 2 the Company posted the following notice to all employees:
There has been expressions by some employees of a desire for V2 hour nooning
instead of the full hour presently in operation. Each employee, plant wide, will
be asked to indicate his preference on a slip attached to his time card on Tues-
day, July 3, 1956. This will establish the desire of the majority of employees,
and as a result a decision will be made by management.
The next day Mr. Blake wrote to McCabe , in response to his letter of July 1, that
"The Company has already taken steps to ascertain the desire of the majority of all
employees, as a result of which a decision will be made in this matter." On the
morning of July 3, the employees found ballots on the question attached to their
timecards. Each voter was instructed both to mark and sign his ballot before
returning it.
5 This was Local 92, chartered by the Union at or about this time. At the hearing the
parties stipulated that the officers of that local had filed the necessary affidavits and data
to be in compliance with Section 9 (f), (g), and (h) of the Act until June 27, 1957.
6 This finding is based on the credible, uncontradicted testimony of McCabe.
7 The foregoing quotations are from the credible testimony of Morrell Gray, which was
corroborated, in turn, by the testimony of Robbins, Benner, and Northrup. None of the
foregoing was in conflict with Mr. Sawyer's testimony as to this conversation.
FRANK L. SAMPLE, JR., INC. 1501
Sometime that morning Robbins, Benner, and Northrup called upon Blake. At
this meeting they protested the Company 's poll on several grounds which they listed
as follows: ( 1) they had already voted for a shorter lunch hour at the union meeting
of June 27 , so that no further balloting was necessary ; ( 2) it was unfair to conduct a
plantwide poll which would permit office clericals and other personnel to vote even
though they were not included in the bargaining unit established by the Board
certification ; ( 3) it was very undemocratic to require a signed ballot from the em-
ployees; and (4) in the event the Company went ahead with its plans to conduct
such an election , the Union wanted a representative present at the time the ballots
were counted . After listening to the committee 's protest, Blake promised that he
would discuss the matter with the company officials and let the Union know their
decision later in the day. In fact, however, the union committee heard nothing
further from Blake. The Company proceeded to conduct a plantwide poll in accord-
ance with its notice of July 2, and on July 6, it announced that a majority of the
employees having voted for the 30-minute lunch period , the latter would be put
into effect on July 9.
The General Counsel contends that the Company violated Section 8 (a) (1) of
the Act by its conduct of the forgoing poll. The Respondent denies this conclusion
and asserts that its action was taken with the acquiescence of the collective -bargaining
agency and was, therefore, protected.
There is no evidence to support the foregoing assertion of the Company. The
record is plain that after McCabe first requested the change at the meeting on June
22, he subsequently talked with Blake to inform him of the vote of the union mem-
bership on the question, and then on June 29 telephoned Pinkham to inquire as to
the reason why the shortened lunch period had not yet been put into effect. At
the earliest opportunity after the union committee , made up of plant employees,
learned of the Respondent's plan to poll the employees, it registered a vigorous but
ineffective protest over the proposed balloting. In the light of these facts, therefore,
it can hardly be said that the Union acquiesced in the Company's plan to poll the
employees on the lunch hour question.
It is well settled that "An employer may not bypass the exclusive bargaining repre-
sentative by dealing directly with the employees on bargaining subject matters."
The Stanley Works, 108 NLRB 734, 736. The issue as to whether the noon lunch
period should be shortened was plainly a subject for collective bargaining. After
conducting a poll of the union membership , the employees endeavored , through
their representatives, to make their preference known to the Company. When they
sought out the yard superintendent , however, they were told that "such matters
were up to Mr . Sample to do as he chose about them." A few days later the Com-
pany notified the employees that it would conduct its own poll on the question
and that "This will establish the desire of the majority of employees and as a result a
decision will be made by management ." (Emphasis supplied. ) Throughout this
period, therefore , the Respondent ignored the Union as the duly designated and
exclusive bargaining agent for the employees . This conclusion is supported not
only by the above findings but by the testimony of Superintendent Sawyer who
frankly stated that at this time Mr. Sample instructed him to operate the yard without
regard to the Union.8 The action of the Company with respect to this issue was
obviously deliberate and intended as a public manifestation of disregard for the
Union's status . It is my conclusion that this conduct by the Respondent was designed
to, and did, undercut the standing of the certified bargaining agent at the shipyard.
In so doing , the Company flouted the obligations imposed on it by the Act and
violated Section 8 (a) (1). I so find.
C. The discharge of Morrell Gray; conclusions with respect thereto
Gray was terminated on July 6, 1956. He had been in the Respondent 's employ
as a painter for over 3 years and for some time prior to his discharge had been
receiving the top pay for his craft . There was no dispute as to his competence,
for the Respondent conceded , through its counsel at the hearing, that Gray was a
skilled craftsman.9
At the time of his discharge Gray was working in the paint shop at the marine
railway (herein referred to as the railway or yachtyard). This was adjacent to
s His testimony was as follows : "Q. Mr. Sample instructed you to operate as though
there was no union in the picture, is that right? A. If you want to put it that way,
yes."
9 Although Gray spent most of his time while on duty at painting, be also held a mas-
ter mariner 's license and occasionally was assigned to help launch and deliver crashboats
which had been built at the shipyard for the U. S. Navy.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the shipyard but owned by Frank L. Sample & Son, Inc ., a separate corporation
from that which operated the shipyard (i. e., Frank L. Sample, Jr., Inc .). Insofar as
the record indicates , the two corporate entities were owned and controlled by the
same family interests , and there was a free interchange of personnel from one to
the other. There were, however, certain differences as to the physical layout of
the shipyard and the railway. Thus, during the period in question , the former was
enclosed by a wire fence with a watchman at the gate. At the latter, on the other
hand, there was no fence and no guard at any entrance or exit. After the strike,
Gray was assigned certain work at the railway and remained there until his discharge.
The General Counsel alleges that Gray was terminated for discriminatory reasons.
This is denied by the Respondent, according to whom the employee was dismissed
for having violated the Company's rules and conditions of employment by leaving
the yachtyard during working hours without a pass or permission from his supervisor.
The facts are as follows: On the afternoon of July 5, one of the employees in the
railway office came out to the spot where Gray was working with the message that
someone had telephoned him. Gray did not recognize the telephone number he
was told to call and asked if he could use the phone in the railway office. He was
told that he could do so. The office employee then left and when Gray reached
:a convenient point to leave his work he went to an extension phone located in the
paint shop. When he found that in use, he went to the railway office only to find
that the single telephone located there was likewise being used. At that point, Gray
decided to walk across the street to the home of a friend,.one John Trask, and use
the telephone in that residence. He did so, and, upon completing the call, returned
to his job at the railway. Gray spent approximately 10 minutes off the premises
and then returned to his work.io
The following morning Superintendent Sawyer came up to Gray and asked if
he had made a telephone call the preceding afternoon. The employee readily
conceded that he had and that he had done so at the Trask home. The superin-
tendent then stated "You know, you're not allowed to leave the premises." Gray
answered that if there was any objection to what he had done he would be willing
to forfeit an hour's pay. Sawyer, however, declared that that was impossible and
that Gray would have to be discharged at once. This concluded the conversation
and Gray was terminated immediately.
It is the Company's contention that Gray was dismissed for a violation of its
rule 6 which reads as follows:
To leave the yard during working hours employee must secure pass from his
Foreman and present pass to Watchman at gate.
There is some question as to whether this rule was applicable to work at the railway.
It appears on a card entitled "Frank L. Sample, Jr., Inc., Conditions and Rules of
Employment." This Company, of course, operated the shipyard and not the railway.
Moreover, the rule refers to leaving the yard and establishes the requirement that a
pass must be presented to the watchman at the gate. Yet, it was conceded that at
the railway (operated by Frank L. Sample & Son, Inc.) there was no fence around
the premises and, consequently, neither a gate at which nor a watchman to whom
an employee could present a pass. John Blakemore, manager of the railway,
testified that the rule applied at the railway premises, but no printed set of rules
comparable to that promulgated for employees of the shipyard was offered in
evidence. Gray, on the other hand, stated "I understood that Rule 6 forbids you
to leave the yard without asking permission. I also understood that at the railway,
no one paid any attention to those rules because they were rules of the shipyard."
More significant than the testimony of either Gray or Blakemore as to the applica-
bility of this rule to the railway premises, is the fact that there was no evidence that
a violation of it would be penalized by discharge. The same card which lists on its
face "Conditions and Rules of Employment" carries on its reverse side the heading
"The following offenses are Subject to a Penalty of Discharge." There follow some
14 rules violations subject to that penalty none of which include the offense alleged
to have been committed by Gray.
Superintendent Sawyer testified that others had been discharged for violation of
rule 6, but when pressed for details was unable to recall any specific case and finally
conceded that he was unable to remember any such instance during his tenure at
the yard. He testified that he thought there were records of such cases, and Re-
spondent 's counsel stated that a search would be made for them. However, no
records of that character were ever produced.
The only evidence as to such a penalty having been invoked at any time related
to the period from 1940 to 1945, many years prior to Gray's dismissal. In that con-
'^ On making the call, Gray learned, for the first time, that the party seeking to con-
tact him was a union steward at the Bath Iron Works, Bath, Maine.
FRANK L. SAMPLE, JR.,. INC. 1503
nection, Mr. Joseph N. McKown, personnel director for the Respondent during World
War II, testified that on several occasions men were discharged when either he or the
watchmen caught them in the act of furtively leaving the shipyard during working
hours. McKown testified that all of the principals in these incidents had had repeated
warnings before they were ultimately terminated and frankly described them as
"very irresponsible workers" who "in normal times . wouldn't have been hired."
In the light of McKown's own characterization of the personnel involved in those
incidents , in contrast with Gray's superior work history prior to his discharge, it is
my conclusion that, insofar as this record is concerned, his termination was the first
of its kind that had occurred at the Company.
Sawyer testified that on the morning of July 6, Frank L. Sample, Sr., told him that
he had learned Gray had broken a company rule, by being out of the yard "a few
minutes" 11 and suggested that the employee be dismissed. According to Sawyer,
he made no independent investigation of the matter, but immediately sought out Gray
to effectuate Mr. Sample's suggestion.
The Respondent was, indeed, free, as its counsel argues in his brief, to fire Gray for
a good reason, a bad reason, or no reason, so long as the reason was not in fact the
employee's union activities. The Company conceded that Gray had an excellent
work record and it made no effort to prove that he was discharged for any reason other
than his very brief absence from the shipyard on July 5. Gray admitted that he had
not asked permission to absent himself from the premises on that day. At the same
time there is some merit to the employee's assumption, as he stated at the hearing, "If
they hadn't wanted me to answer the telephone they shouldn't have notified me; I
looked at it as tacit permission to answer it."
Gray was well known to the management as one of the most vocal of the union
members in the shipyard. His advocacy of the Union extended from the first bar-
gaining sessions , when he was one of the union negotiators, through the strike when
he was a picket captain, and in the subsequent period when he was elected financial
secretary of the local and then met with Sawyer to demand action on the employees'
request for a shorter lunch hour. The Respondent's cavalier disregard of its
obligation on this latter issue has already been found to be a violation of Section 8
(a) (1). In view of its unwillingness to recognize the Union as a bargaining equal in
that connection, Gray's excellent work record, the trivial character of the offense
with which he was charged, the failure of the Respondent to prove that the punish-
ment so quickly meted out to Gray had ever been visited on any other employee with
a comparable employment history, and Gray's prominence in the Union, it is my
conclusion that he was discharged for his union activities and not the reason assigned
by the Company. In so doing, the Respondent violated Section 8 (a) (3) and (1)
of the Act.12
D. The layoff of Robbins and Benner; conclusions with respect thereto
These two carpenters were laid off on July 6, 1956. John Robbins had been hired
on July 26 the preceding year. When first employed he received $1.65 per hour, the
rate for a third-class carpenter. On September 22, 1955, he was promoted to the next
higher grade, that of second-class carpenter, and thereafter received $1.75 per hour.
From the time the Union was certified Robbins worked actively on its behalf. Along
with Gray, he participated in all of the collective-bargaining negotiations and later,
upon being elected chief steward, he was on the committee which endeavored to
meet with the management, first to ask that a shorter lunch hour be put into effect,
and then to protest the Company's plans for polling the employees on the question.
As a steward, the collective-bargaining agreement accorded him top seniority for
layoff purposes over all others in his department. Norman Benner was hired in
October 1955 at $1.65 per hour. He remained at this rate throughout his employ-
ment. On June 27, Benner was elected a vice president of the newly, formed local
of the Union, and subsequently participated with Robbins and Gray in their futile
meetings with Sawyer on the lunch hour issue. Benner's union office did not carry
with it any preferential seniority under the terms of the contract.
11 The quotation is from Sawyer's testimony.
Is See' N. L. R. B. v. Solo Cap Company, 237 F. 2d 521, 525 (C. A. 8), where the court
stated "It was difficult for the Board to believe that Page, who had had an excellent
work record, was discharged for any motive other than union activity. Her single lapse
of inefficiency provided a mere excuse for company action against her. A justifiable ground
for dismissal is no defense if it is a pretext and not the moving cause. N. L. R. B. v.
Skinner & Kennedy Stationery Co., 8 Cir., 1940, 113 F. 2d 667; N. L. R. B. v. Wells, Inc.,
9 Cir., 1.947, 162 F. 2d 457."
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to the strike Robbins and Benner were working on the launching ways
for .the hull of minesweeper number 510. On June 26, upon their return to work
following the strike, they were assigned to sheathing on the hull of another ship,
number 511.13 There was testimony, none of which was disputed, that sheathing is
rough, dirty work and considerably less desirable than the type of job these men
had had prior to the strike. Their supervisor on 511 was Stanley Mitchell, the hull
foreman. There was testimony by the 2 employees that during the period immediate-
ly before their layoff the foreman had several complaints about their work and re-
quired that they do over at least 2 jobs. Mitchell, however, testified that none of the
incidents involved any reflection on the ability of either Robbins or Benner. He
further testified that he had no complaints about their work and had never
submitted any unfavorable reports about them.
On the afternoon of July 3, Superintendent Sawyer came up to Robbins and Benner
to tell them they were being laid off on July 6 "according to skill and ability." 14 When
told that it was on this basis that he was being laid off, Robbins asked that he be
given the carpenters' classification test immediately and be rated on that standard
with the other carpenters on the job. Sawyer merely laughed at this request and made
no effort to answer Robbins. Benner then asked the, superintendent why they were
getting only 21/2 days' notice to their layoff instead of the 5 days required by the
agreement. Sawyer replied "There is no contract." When Benner then asked
if Mr. Sample had signed one, the superintendent replied, "Yes, but there is no
contract." 15 This concluded the conversation.
On July 5, as the result of a conversation had, with Northrup,16 Robbins sought
out Mitchell to ask if he was being laid off for union activities. According to Robbins,
his foreman replied, "That's not my opinion, that's the opinion of the higher-ups."
Benner, who was present, corroborated this testimony.17 Mitchell denied that this
was the substance of his remarks.18 Upon consideration of this conflict as to the
conversation, particularly the demeanor of the witnesses, it is my conclusion that
Robbins' version is the more credible.
In response to the General Counsel's allegation that Robbins and Benner were
discriminatorily laid off, the Company contends that they were terminated solely for
economic reasons. In support of this argument there are the following facts: For
about 2 years prior to the period in question the Respondent had been engaged in the
construction of a number of mine-sweepers for the United States Navy. At one
point during the winter of 1955-56 it had over 250 carpenters on its payroll. By
July 1956, however, the employment peak on this particular Navy contract had
passed, the Company had no other Navy work in the yard and only a small amount
13 Robbins returned to his job on June 25 and worked on 510 that day. Because of sick-
ness Benner did not report back until the next day. When these two employees arrived at
the yard on June 26, they were assigned to 511.
14 The quotation is from the credible, undenied testimony, of Robbins.
1G The foregoing quotations are from the credited, undenied testimony of Benner.
15 Northrup had related to Robbins the substance of a conversation he had with Mitchell
about the layoffs. Both Northrup and Mitchell testified at the hearing. According to
Northrup, on the afternoon of July 3, he asked the foreman whether the Company intended
to discharge him along with Robbins and Benner, and Mitchell assured him that it had
no such plans. Northrup testified that the foreman then explained that as to Robbins and
Benner, "they were doing union business and they got caught, but so far nobody has
caught you at anything." This testimony was never directly denied by Mitchell. Ac-
cording to the latter, Northrup asked why he was not being laid off and the foreman told
him that it was because he did his work and stayed on the job. Mitchell denied that he
ever said to Northrup "There's no danger of your being fired for Union activities," but
was asked no other questions about this conversation. Ralph Simmons, another carpenter,
was present throughout the discussion between Mitchell and Northrup . Although etlll
in the Respondent's employ at the time of the hearing, Simmons was not called to testify.
In view of the lack of a direct contradiction of the substance of Northrup' s testimony as
to the conversation regarding Robbins and Benner, as well as the impression made on
the Trial Examiner by Northrup and Mitchell as witnesses, it is my conclusion that
Northrup's testimony as to this conversation is the more accurate and complete.
11 Benner also testified that Robbins mentioned only himself and did not include Benner
in the question he asked the foreman.
is According to Mitchell, Robbins asked "Is this right, here I'm being laid off for union
activities?" And he answered "No, I don't think so. . . . I have nothing to do with the
laying off or the hiring of men, that's for the higher ups."
FRANK L. SAMPLE, JR., INC. 1505
of commercial work . On July 3, the Respondent had 62 carpenters in its employ.19
On July 6, in addition to Robbins and Benner, three other carpenters were laid off 2°
On July 20, nine more were reduced in force. As the result of subsequent layoffs,
by September 19, the number of first-, second-, and third-class carpenters had been
reduced to 3921 It was undisputed that after July 3, the Company hired no car-
penters to replace those laid off . It was likewise true that on that same date Benner
had less seniority than any other carpenter, third class, on the payroll..
That, however, was not true of Robbins. At the .time of his layoff there were
eight others (apart from Benner) with less seniority than he who were kept. At
the time of the hearing, two of these 22 were still at work in the shipyard. George H.
Reed, assistant general superintendent and in charge of carpentry work, testified
that these individuals who were preferred over Robbins had more skill and ability
than the latter. He conceded, however, that the Company kept no production records
which would substantiate his judgment as to these men. Although Robbins and
Benner were given little more than 2 days' notice of their layoff, Reed testified that
he and Sawyer had decided on their termination about a week before July 3. When
asked why they had not been given at least the 5 days' notice required by the contract,
he replied that he had been told to operate as if there were no contract in effect.
Reed conceded that at the time he knew Mr. Sample had'signed the agreement and
that the Company was awaiting its return from the Union' s national office. It is of
some significance that although Mitchell testified that he had consulted with Reed
before deciding to assign Robbins to the sheathing work and although, as testified
by Reed, the foreman was also consulted before a determination was made as to a
wage increase for a particular individual, there was no consultation with Foreman
Mitchell at the time Sawyer and Reed determined to lay off Robbins and Benner.
Mitchell testified that he did not learn of this decision until after the employees had
been notified. As the General Counsel contends, it seems inconceivable that with
a practice of consultation as to such lesser matters as a job assignment or a 10-cent
raise, there would have been no discussion by Respondent's executives with its fore-
man, the company representative closest to the situation, before deciding who should
be laid off, unless there was some reason other than that given by the Respondent
for the choice. Pyne Moulding Corporation, 110 NLRB 1700, 1705, enfd. 226 F. 2d
818 (C. A. 2).
It is undisputed that there had never been any complaints about Robbins' work.
That he was competent appears from the fact that he was given a raise to $1.75 an
hour shortly after being employed. Yet he was among the first to be laid off even
though there were eight others with less skill (as reflected by their rates of pay) 23 who
were not laid off and even though there were others in his pay bracket with less
seniority who were kept on the payroll.24 Although Sawyer and Reed testified that
their decision was based on comparative skill and ability, they offered no objective
test to support their conclusion that those with less seniority than Robbins were more
skilled than he. The only objective test available is the test reflected in the hourly
rates paid by the Respondent and, by that test , Robbins had greater ability than
others not laid off. This fact , as well as the fact that his termination was decided
upon by Sawyer and Reed, without reference to Robbins ' immediate foreman, causes
12 This figure does not include 11 helpers who were paid rates considerably below those
established for carpenters of the first 3 classes.
20 Including Robbins' father, Wilbert Robbins.
m Some of this reduction was due to voluntary quits, such as that of Donald Northrup
on August 24. The record, however, is not clear as to how many were in that category.
21 Edward Gorton and Lester Vinal, Jr.
sa These were Ralph Abbott, Wolcott Marr, Lester Vinal, Lester Vinal, Jr., Fernald
Bailey, Earl MacFarland, Richard Lowell, and George Lewis, all of whom were third-
class carpenters.
9+ These were Raymond Genther , Frank Tarr , George Mitchell , Raymond Watson , Alpheus
McLain , Edward Gorton , and Donald Northrup . The last named was the union president
who subsequently quit his job , voluntarily , in August . That Northrup was not laid off
along with Robbins and Benner might tend to prove that the Company did not discrim-
inate against the last two named. However, the mere fact that an employer does not
discriminate against all union adherents does not preclude a finding of discrimination
against some union adherents. N. L. R. B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163, 174-
175 (C . A. 7) ; N. L. R. B. v. W. 0. Nabors Company, 196 F. 2d 272 , 276 (C. A. 5 ), cert.
denied 344 U. S. 865,
450553-58-vol. 118-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me to conclude that a reason other than that offered by the Respondent caused him
to be selected for layoff. Robbins and Gray had been the most active protagonists
of the Union throughout the long period of negotiations and after the strike they
had been very persistent in their efforts to compel the Respondent's management'to
accord them a hearing on the lunch hour issue. Although the Respondent had
signed an agreement with the Union, as found earlier herein, it had instructed its
management to operate as though there were no union in the picture at least until
the union officers had also signed. Had Robbins been on the payroll when this
agreement went into effect on July 9, as chief steward, he would have had top
seniority in his department. As appears from this record, however, on about June 28,
and shortly after the union members had selected him for this post, Reed and
Sawyer, without discussing the matter with his foreman, concluded that Robbins
should be among the first laid off. When Sawyer told him that he was being laid
off on the basis of skill and ability, Robbins' immediate request for a comparative
test was ignored by the superintendent. On the basis of the foregoing facts, I con-
clude and find that Robbins was discriminatorily laid off in violation of Section
8 (a) (3) and (1).
Benner's case, though parallel to Robbins' in many respects, is different in that he,
in fact, had less seniority than any other carpenter in his class. Moreover, the
collective-bargaining agreement accorded no seniority advantage to his position as
vice president of the union local. Since the Respondent was engaged in a retrench-
ment program which ultimately led to a continuing series of layoffs, Benner's lack of
seniority obviously made him vulnerable from the very first. For this reason, it
is my conclusion, although the matter is not entirely free of doubt, that Benner's layoff
was not discriminatory.25
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 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 the Respondent has engaged in and is engaging in unfair labor
practices, I will 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 discriminatorily discharged Morrell Gray on July 6, 1956, and
discriminatorily laid off John Robbins on that same day, I will recommend that
the Respondent offer these employees immediate and full reinstatement without
prejudice to their seniority or other rights and privileges, and make them whole for
any loss of earnings that they may have suffered by payment to them of a sum of
money equal to that which they normally would have earned from the aforesaid
date of their discharge or layoff to the date of the Respondent's offer of reinstate-
ment, less net earnings during said period. The back pay provided for herein shall
be computed in accordance with the formula stated in F. W. Woolworth Company,
90 NLRB 289.
I will also recommend that the Respondent, upon reasonable request, make avail-
able to the Board and its agents, all payroll and other records pertinent to an analysis
of the amount due as back pay.
w Whereas, in response to Robbins' question as to whether he was being laid off for
union activities, Mitchell had answered in the affirmative, according to Benner himself
nothing was said at the time as to his own layoff. In an earlier conversation with
Northrup (footnote 16) Mitchell had stated that Robbins and Benner "were doing union
business and they got caught." This remark would imply that in the opinion of the man-
agement both were engaged in union activities on working time. There is no basis in
the record for the conclusion that either of these employees had abused their position
in the Union to engage on company time in any organizational activities which were not
protected by the Act, On the other hand, there is likewise no ground for concluding that
Mitchell's remark to Northrup constituted an admission by the former that these em-
ployees were discharged for having engaged during working time in what the Company
would concede were protected concerted activities.
FRANK L. SAMPLE, JR ., INC. 1507
Since I have found that the Respondent, by various acts, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in the Act and
particularly because the discriminatory discharges found herein go "to the very heart
of the Act" (N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C. A. 4) ), and
indicate a purpose to defeat the self-organization of its employees, I am convinced
that the unfair labor practices committed are related to other unfair labor practices
proscribed and that the danger of their commission in the future is to be anticipated
from Respondent's conduct in the past. Accordingly, in order to make effective the
interdependent guarantees of Section 7 and thus effectuate the policies of the Act, I
will recommend that the Respondent cease and desist from in any manner infringing
upon the rights of employees guaranteed by the Act. May Department Stores v.
N. L. R. B., 326 U. S. 376, 386-392.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is, and at all times relevant herein, was, engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Morrell
Gray and John Robbins, thereby discouraging membership in the Union, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
4. By 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.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent did not discriminatorily lay off Norman Benner as alleged in
the complaint.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Industrial Union of Marine and
Shipbuilding Workers of America, AFL-CIO, or in any other labor organiza-
tion of our employees, by discharging or refusing to reinstate any of our em-
ployees, or in any other manner discriminating in regard to their hire or tenure
of employment, or any term or condition of their employment.
WE WILL offer to Morrell Gray and John Robbins immediate and full re-
instatement to their former or substantially equivalent positions without prej-
udice to any seniority or other rights previously enjoyed, and make them whole
for any loss of pay suffered as a result of the discrimination against them.
WE WILL NOT conduct polls of our employees as to their preferences on hours
of work or other conditions of employment in such a manner as to interfere with
their right to bargain collectively through representatives of their own choosing.
All our employees are free to become, remain, or refrain from becoming members
of any labor organization, except to the extent that this right may be affected by
agreements in conformity with Section 8 (a) (3) of the National Labor Relations
Act, as amended October 22, 1951.
FRANK L. SAMPLE, JR., INC.,
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.