Gibbs Corp.

National Labor Relations Board - Board Decisions

Jun 2, 1961

131 N.L.R.B. 955 (N.L.R.B. 1961)

GIBBS CORPORATION 955
seniority or other rights and privileges . It is further recommended that Respondent
Local make Hall whole for any loss of pay he may have suffered by reason of its
discrimination against him , by paying to him an amount equal to that which he
would have earned , but for the discrimination against him, from May 25, 1959, the
date of the discrimination against him, until a date 5 days after Respondent Local
has notified both the Bradley Company 3 and Hall as recommended above, less Hall's
net earnings during said period ( Crossett Lumber Company, 8 NLRB 440, 497-498),
said backpay to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, 1 make the following:
CONCLUSIONS OF LAW
1. D. L. Bradley Plumbing and Heating Co., Witte-Barker, Inc., and other employ-
ers who bound themselves in collective bargaining by group action , are engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Plumbers & Pipe Fitters Local Union 214 is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By attempting to cause and by causing D. L. Bradley Plumbing and Heating
Co. to discriminate against H. Maynard Hall in the hire and tenure of his employ-
ment, Respondent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(2) and Section 8(b)(1)(A) of the Act.
4. By restraining and coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A) 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.
[Recommendations omitted from publication.]
8 Respondent 's written advice to the Bradley Company on April 18, 1960, that it had
no objection to the reemployment of Hall did not toll the backpay due Hall because,
insofar as the record shows , Respondent has never Informed Hall that it no longer objects
to his reinstatement.
Gibbs Corporation and Joseph Abrunedo , William Dean Beason,
Neven E. Bennett , Willard M. Buie, Dennis C. Burch , Hubert
C. Dubberly, Sherman L . Hudson, Laverne R . Jenkins , Johnnie
G. Jewell , Wilford J. Lloyd, Edison McDonald, Rudolph Nudo,
Carol G. Nugent , Murphy D. Price , Jr., Cecil D. Rogers, Oscar
Harold Ryals , Henry R. Tillman , Edward D . Turner, George
E. Tuten, and Joseph O. Witcher . Case No. 192-CA-150. June
2, 1961
DECISION AND ORDER
On December 1, 1960, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
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-
131 NLRB No. 118.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case , and hereby adopts the findings,' conclusions,z and recommenda-
tions 3 of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Gibbs Corpora-
tion, Jacksonville, Florida, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Dicharging or otherwise discriminating against its employees
for engaging in concerted activities for their mutual aid or protec-
tion.
(b) Discharging or otherwise discriminating against its employees
because they have filed charges under the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist any 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 and protection, as guaranteed in Section 7 of the Act, or
to refrain from any or all such activities.
1 The Trial Examiner found that Respondent violated Section 8 ( a) (4) of the Act by
discharging Neven E Bennett for having signed the Nudo letter supporting the charges
which had been filed against Respondent on May 23, 1960 Respondent has excepted to
this finding The record discloses , and the Trial Examiner found , that, although Re-
spondent believed that Neven E Bennett had joined in filing the charges and discharged
him because of this belief , Bennett had not in fact done so prior to his discharge . Accord-
ingly, we find merit in the Respondent 's exception in this regard and shall dismiss this
aspect of the complaint . However , the Trial Examiner found , and we agree, that Respond-
ent violated Section 8 ( a) (1) of the Act by discharging Bennett and we adopt his recom-
mended order that Bennett 's discharge be remedied in the manner set forth in the section
of the Intermediate Report entitled "The Remedy "
2 The Respondent excepted to the Trial Examiner 's characterization of the agreement
between the Respondent and the Union as a "sweetheart contract." As the Trial Examiner,
both on his own motion and on motion of Respondent 's counsel , struck testimonial evi-
dence at the hearing which so characterized the agreement , we find merit in this exception
and do not adopt the Trial Examiner 's characterization of the contract . This does not
affect our agreement with the Trial Examiner's finding that in the circumstances, the
activities of the employees were protected by the Act.
S Because the character and scope of the unfair labor practices found to have been en-
gaged in by the Respondent herein go to the very heart of the Act, we shall for this reason
alone fashion a broad order directing the Respondent to cease and desist from in any
other manner infringing upon employee rights guaranteed in Section 7 of the Act. See
N.L R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (CA. 4).
GIBBS CORPORATION 957
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Offer to all of the employees named in the section of the Inter-
mediate Report entitled "The Remedy" immediate and full reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered by reason of
the discrimination against them, in the manner set forth in that sec-
tion of the Intermediate Report.
Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary in analyzing the amount of backpay due and
reinstatement rights under the terms of the Order.
(c) Post at its Jacksonville, Florida, shipyard, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be fur-
nished by the Regional Director for the Twelfth Region, shall, after
being duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
Respondent violated Section 8 (a) (4) of the Act by discharging Neven
E. Bennett, be, and it hereby is, dismissed.
In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor-
Management Relations Act, we hereby notify our employees that :
WE WILL NOT discharge or otherwise discriminate against our
employees for engaging in concerted activities for their mutual
aid or protection.
WE WILL NOT discharge or otherwise discriminate against our
employees because they have filed charges under the Act.
958 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
WE WILL offer the following employees immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
privileges, and make them whole for any loss of pay suffered as 'a
result of the discrimination against them :
Joseph Abrunedo
William Dean Beason
Neven E. Bennett
Willard M. Buie
Dennis C. Burch
Hubert C. Dubberly
Sherman L. Hudson
Laverne R. Jenkins
Johnnie G. Jewell
Wilford J. Lloyd
Edison McDonald
Rudolph Nudo
Carol G. Nugent
Murphy D. Price, Jr.
Cecil D. Rogers
Oscar Harold Ryals
Henry R. Tillman
Edward D. Turner
George E. Tuten
Joseph O. Witcher
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization , to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
GIBBS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly designated
Trial Examiner at Jacksonville , Florida, on October 4, 5, and 6, 1960.
The complaint, as amended , alleged that Gibbs Corporation , herein called the
Respondent or the Company, discharged 20 employees on specified dates in May and
June 1960 because they filed charges alleging violation of the National Labor Rela-
tions Act, as amended , against the Respondent and the Independent Workers' Union
of Florida, herein called the Union.
The complaint alleged that by the aforesaid discharges Respondent interfered
with, restrained , and coerced its employees in violation of Section 8(a)(1); assisted
the Union in violation of Section 8(a)(2); discriminated against its employees to
'discourage membership in a labor organization in violation of Section 8 (a) (3) ; and
discriminated against its employees because they filed charges under the Act in
violation of Section 8(a) (4).
The answer denied that the employees were discharged and denied any violation
of the Act.
At the opening of the hearing the General Counsel moved to amend the com-
plaint to allege that the Respondent , by the aforesaid discharges , discriminated
GIBBS CORPORATION 959
against its employees to encourage membership in the Union. The motion was with-
drawn when the Trial Examiner stated he would grant Respondent the 10 days
requested for leave to amend its answer.'
At the conclusion of the case the General Counsel submitted brief oral argument
and briefs were received from the General Counsel and the Respondent on Novem-
ber 4.2
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Gibbs Corporation is a Florida corporation engaged in the operation of a shipyard
at Jacksonville, Florida. During a representative 12-month period Respondent
purchased materials outside the State of Florida valued in excess of $50,000 and
during the same period it has provided goods or services directly related to the
national defense valued in excess of $100,000. Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Independent Workers' Union of Florida is a labor organization within the mean-
ing of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The discharges on June 1
According to testimony which is not disputed the Respondent, during the year
1960, suffered a decline in revenue from its shipyard operations. It accordingly
sought means of increasing its business and decreasing its expenses. According to
the employee witnesses, not substantially contradicted, among the latter means de-
vised was a disregard of seniority with respect to layoff and recall which enabled
Respondent to recall second-class craftsmen ahead of first-class craftsmen for work
which could be performed by either classification. This resulted in a saving to the
Company of the difference between the first- and second-class rate of pay and also
in increasing dissatisfaction among the first-class craftsmen affected. The Company
had in effect during all times material herein a collective-bargaining contract 3 with
the Union, in which the disaffected employees held membership. Redress was first
sought by the employees under the grievance procedure of their collective-bargaining
contract. When appeals to their shop stewards and to President Roy Gatz proved
futile they hired a lawyer to advise them of their rights under the contract. This
attorney, James Dixon, held a meeting with them on April 22 and advised them
that the Company reserved control over seniority policy under the contract; de-
scribed it as a "sweetheart" contract; and told them that their only recourse was to
reopen the contract under the wage reopening clause. On May 18 a special meet-
ing was held for the purpose of hiring a lawyer to reopen the contract and negotiate
with the Company. President Gatz opposed this plan and told the men they would
have to pay for the lawyer themselves. The meeting broke up in disorder when
Rudolph Nudo, an employee and' one of the leaders of the protesting group, was
shouted down by Gatz. On May 21 the dissident group met with an agent of the
National Labor Relations Board at the home of Joseph Abrunedo and on May 23
Nudo filed charges against both the Company and the Union.4 On May 25 Nudo
sent the following 5 letter to George Gibbs, Jr., Respondent's president:
1 See Section 102 20 and 102 23 of the Board's Rules and Regulations, Series 8 The
motion was not based on newly discovered evidence or upon facts which were'notfavail-
able during the period of investigation
2 By motion dated November 18, 1960, the General Counsel moved to correct the record.
By order dated November 29 the Trial Examiner granted said motion and the record
was corrected as requested In the motion.
8 Respondent 's Exhibit No. 1.
' General Counsel's Exhibits Nos 4 and 5.
5 General Counsel's Exhibit No. 6.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. GEO. W. GIBBS II,
c/o Gibbs Corp. Inc.,
Foot of Hendricks Avenue,
Jacksonville 7, Florida
RUDOLPH NUDO,
9751 LILY RD.,
JACKSONVILLE II, FLORIDA,
May 25, 1960.
DEAR MR. GIBBS: This is to inform you that a Committee has been formed
from your employees supporting charges to the effect that unfair labor practice
has been committed in violation of the Labor Management Relations Act, by
your Company.
Also these men are disgusted with the fact that so many Senior 1st Class
mechanics in all departments are kept out of work while you work Junior 2d
Class mechanics in their place.
The following is a list of men active in supporting these charges against you
and your Company.
G. E. Tuten N. Weeps
J. Abrunedo Edison McDonald
H. C. Dubbrey H. R. Sillman
E. Turner D. C. Burch
S. L. Hudson J. G. Jewell
W. J. Lloyd O. H. Ryals
J. O. Mitchel C. B. Rogers
M. D. Price Jr. W. B. Beason
C. G. Nugent L. Bennett
L. R. Jenkins
Yours very truly
RUDOLPH NUDo,
Committee Chairman.
cc: Committee File
On May 27 the events which led to the issuance of complaint herein moved into
focus. On that date the Company sent a letter to a large number of its employees
notifying them not to report to work until further notice. The employees whose
names appeared in the Nudo letter of May 25 were included in this group. Many
of the employees receiving the letter went to the Company's yard the next day,
May 28, for an explanation. No explanation was forthcoming, however, until May
31 (May 29 was a Sunday and May 30 was a holiday) when Rex Dorman, director
of industrial relations, told them that a layoff of 75 to 100 men had been necessitated
by the cancellation of a contract. Dorman admitted that the Company had not
followed its seniority policy in making the layoffs and stated that the mistakes would
be corrected. On the same day the Company sent telegrams to a number of em-
ployees telling them to return to work including, with a few exceptions, the men
whose names were on the Nudo letters On the next day June 1, all employees in
the Nudo letter, except Nudo,7 returned to work and were discharged on that day.
While there is a variation in the circumstances of discharge and the reasons given
these need not, in view of the ultimate finding, be recited here. After the men were
discharged and on the afternoon of the same day a group, of them met Dorman in
the yard and asked him why they were fired. According to the credited testimony
of Tuten, Rogers, Jewell, and Witcher, Dorman told them they had been fired be-
cause they had signed the Nudo letter.
On the next day, June 2, the discharged employees went to the union hall and
saw Gatz, Vice President Moon, and Shop Steward Pereyra. At the request of the
9 Those employees named In the complaint whose names did not appear on the letter are
treated individually , infra.
7 Nudo, whom I credit, testified that he had filed a grievance (General Counsel's Ex-
hibit No . 2) against the Company on May 25 and that a hearing was held on May 31 At
this hearing Dorman told Gatz that he could not represent Nudo because Nudo had filed
charges against the Union and then told Nudo that he was not working because he
(Dorman ) did not want him around and that he would never be around while Dorman
was there. I find that Nudo was fired on May 31 because he had written the letter to
Gibbs and had filed charges against the Company . This finding is based not only on the
testimony of Nudo but on subsequent testimony that all men whose names appeared on
the Nudo letter were to be discharged.
GIBBS CORPORATION 961
men the officers of the Union went to the yard to find out why the men had been
discharged. Upon returning Gatz told the men that they had been fired because
their names appeared in the Nudo letter. The men asked Gatz what he was going
to do about it and Gatz finally brought out a copy of the charges by Coffee filed
against the Union with the National Labor Relations Board and told them nothing
would be done until the charges were disposed of by the Board.
Dorman and President George Gibbs, Jr., were the only witnesses called by the
Respondent. Dorman testified that he fired the men whose names appeared on the
Nudo letter on instructions from Gibbs. He stated that Gibbs gave him a memo-
randum with the names of the employees to be fired and that later Gibbs called him
by telephone and told him to get the men out of the yard. This was on June 1 and
Gibb's orders were carried out on that day. Dorman further testified that Gibbs
did not give him any reason for discharging the employees and that he did not ask
for any. He denied that he told Tuten, Rogers, Jewell, and Witcher that they had
been fired because their names appeared on the letter, and he testified that he still
did not know the reason why the men had been discharged when he met with Gatz,
Moon, and Pereyra on June 2. I do not believe Dorman.8 Apart from my observa-
tion of him it appears incredible that the industrial relations director of so large a
company would be advised in writing and by telephone to effect a summary discharge
of a group of employees and neither be given a reason nor ask for one.
_ Gibbs testified that he received the Nudo letter either 7 or 10 days after the date
of the letter, that he was leaving for New York when he received it, and that he
tried, without success, to reach either of his attorneys, Mr. Bowden and Mr. Hamil-
ton. He then left the memorandum of instructions for Dorman and called Dorman
from New York to make sure the instructions had been carried out. Gibbs testified
that he fired the employees whose names appeared on the Nudo letter because he
believed they were acting in derogation of the certified bargaining agent and he
thought he would be committing an unfair labor practice if he met with them. (The
Nudo letter does not request a meeting.)
2. The discharge of Willard M. Buie
Buie was a rigger first employed in 1951 and his foreman was Oscar Jay. The
last day he worked was May 27. On Saturday, May 28, he received the letter from
the Company telling him not to report to work until further notice. He saw Jay
who told him that the order had come from "higher up" and that night he received
calls from other men who had received similar letters. On Tuesday, May 31, he
reported to the yard and found his timecard missing from the rack. He and a group
of the employees who received the layoff notice saw Moon and later that day they
met with Dorman who said he had received orders to lay off some 75 or 100 men
but that due to a mixup in the personnel department (Dorman had been out of
town) the Company's seniority policy had not been followed. Dorman agreed that
this error would be corrected and the senior men put back to work. Buie, unlike
the others, did not receive a telegram to report back to work on June 1. He went
to the yard, found his card still missing from the rack, talked to his shop steward,
and later talked to Gatz and Moon. That night he met Neven Bennett who told
him that he (Bennett) had gone to work and had then been fired. On June 2 Buie
went back to the yard and again he saw Gatz, Moon, and Pereyra. In the afternoon
he saw Carroll, Dorman's assistant, and Carroll told him to go to work. He worked
until 1:15 p.m. on Monday, June 6, when Jay came to him and told him to "get his
damn tools and get out of the yard" because he had been fired. He asked why and
Jay told him it was because he had filed a grievance against the Company. Buie had
not filed a grievance but he had joined in the filing of the first charge by Coffee
on June 3 (General Counsel's Exhibit No. 1-a) and his name was the first on the
list.
Dorman first testified that he fired Buie because he refused to testify in an investi-
gation of the Company by the Wage and Hour Division of the Department of Labor.
Buie was asked to give a statement to the Company's attorneys and Dorman felt'
that Buie was uncooperative.9 On cross-examination Dorman testified that the
8 I discredit him upon his demeanor on the stand , upon contradictions in his testimony,
and upon the implausibility of some of his testimony Dorman impressed me as a witness
void of any regard for the truth.
° Dorman's original testimony in which he stated that Buie had taken the fifth amend-
ment gave the impiessmn that Buie had rfused to testify before the Wage and Hour
investigators.
599198-62-vol. 131-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation took place in either March or May and later changed the dates to
either the first of April or May. But Dorman admitted that Buie worked for some
time after his refusal to testify (he was working on May 27 ). He then testified that
Buie was fired because he had filed a grievance for 3 or 4 days relating to the time lost
due to the Company's error on May 28 10 but he also admitted that he rehired Buie
on June 3 and fired him on June 6. There is no rational explanation on the basis of
Dorman 's own testimony either for the rehire on June 3 or the discharge of June 6.
I cannot credit any of Dorman 's testimony regarding the discharge of Buie and
I do credit Buie wherever there is dispute . I find that Buie was discharged on June
6 because his name appeared on the charge filed by Coffee under the National Labor
Relations Act.
3. The discharge of Neven E . Bennett
Bennett was a first -class machinist employed at Gibbs since 1950 . He was not
working, due to a disability , on May 28 when he received the Company's letter telling
him not to report to work. He called his foreman , Bernette, asked about the letter,
and was told to forget it and report as soon as he was able . He heard the rumor that
there would be a meeting of employees at the yard on May 31 and he attended. He
did not receive a telegram telling him to report on June 1, possibly because he was
on the disabled list. On the night of June 1 he saw Abrunedo who told him that he
(Abrunedo) had been fired that day. On Thursday, June 2, he was told by- the
Company's nurse that he could work the next day and he went to see Carroll in
Dorman's office. Dorman told Bennett that the Company had fired the wrong Ben-
nett and that they should have fired him for signing the Nudo letter ." Bennett
denied that he had signed it but he told Dorman that he thought the men had done
-the right thing. Dorman then told him he would think it over . That night Bennett
called Bernette and told him he would report in the morning and was , told that he
"was involved" and that he could come in and clear out his belongings . I therefore
find that he was discharged on June 2.
Without finding that Bennett authorized the use of his name on the Nudo letter
I do find that he was discharged by Dorman because Respondent believed he had
signed the letter.
4. The discharge of Joseph O. Witcher
The name of Joseph O. Witcher does not appear on the Nudo letter. Nudo
testified , however, that Witcher's name was mistakenly designated on the letter
as J. O. Mitchel. Nevertheless , he was told by Dorman on June 1 that he was fired
because Dorman had been instructed to fire all the men who signed the letter.
Whether or not Dorman had been able to ascertain that Mitchel was an error and
that the proper name was Witcher is a matter of speculation . In view of the uncon-
tradicted testimony of Witcher that he inquired why he was fired and was told
that all the men who had signed the letter were fired, I can only find that he was
fired because the Respondent knew or suspected that he was among the group filing
charges.
B. Conclusions
1. Violation of Section 8(a)(2)
I find no evidence in the record to support the allegation that the Respondent
assisted the incumbent Union in violation of Section 8(a)(2) of the Act. I cannot
see that the discharges herein assisted the Union except in the derivative fashion
that they removed from the bargaining unit a dissident group of employees. But
the primary purpose of the discharges was reprisal for the Nudo letter referring
to the charges of unfair labor practices. I do not find such indirect and unintended
support as the Union may have received from this action sufficient to support this
allegation of the complaint.
I shall therefore recommend that the complaint, insofar as it alleges violation of
Section 8(a) (2), be dismissed.
2. Violation of Section 8(a)(3)
The complaint also alleges that the discharges of the employees discouraged mem-
bership in a labor organization in violation of Section 8(a)(3) of the Act. Quite
obviously the discharges did not discourage membership in the incumbent Union.
io Buie never did file a grievance-Dorman admitted that Buie did not tell him he was
filing a grievance but stated that be heard this from Howell.
n The name which appeared on the Nudo letter was L. Bennett, but Nudo testified that
this was a mistake and that it should have been N. Bennett.
GIBBS CORPORATION 963
If this paragraph is intended to mean that the discharges discouraged membership
in the employees ' committee , then there must be evidence that the employees' com-
mittee was a labor organization within the meaning of the Act. There is no evi-
dence that this committee ever sought to meet with the Respondent concerning
"grievances, labor disputes , wages, rates of pay, hours of employment or conditions
of work." I can only find that the purpose of this committee was to file charges
with the National Labor Relations Board and have the Board investigate the con-
tract between the Company and the incumbent Union and investigate the prac-
tices under the contract . I do not find that this meets the very liberal standards
applied to the statutory definition.13 As in the Perfect Circle case, the action taken
by the employees was for the limited purpose of utilizing the processes of the Board.
I shall therefore recommend that . the complaint , insofar as it alleges that the
Respondent violated Section 8(a)(3) of the Act, be dismissed.
3. Violations of Section 8(a)(1) and (4)
These are the chief issues. The contention of the Respondent that it discharged
the employees because they attempted to negotiate directly with Respondent and
bypass the certified bargaining agent must be rejected . There are no facts to sup-
port such a contention in this record . The employees who were discharged had
sought to have their bargaining agent , the incumbent Union , process their grievances
respecting seniority in recall and had been rejected. They had asked , at a union
meeting, for a legal interpretation of their bargaining contract and they had been
told by an attorney that the contract was a "sweetheart" contract under which they
had no seniority privileges . They had asked their president, Gatz, to reopen the
contract and had been told they would have to hire their own attorney . They had,
unlike the employees in the Dazey case,13 exhausted their procedures within their
Union . They then took what appeared to be the only recourse remaining-a request
for an investigation by the National Labor Relations Board. Before they filed
their charges, however, they consulted with an agent of the Board , an act which I
find manifests the good faith of the employees . Unless I am to hold that a group
of employees who have reason to believe either that their contractual rights have
not been protected by their designated bargaining agent or that the contract has
been collusively designed to deprive them of certain rights may not ask for a Board
investigation of the facts, then I must find that their concerted activity is protected.
The mere statement of the alternatives begets the answer. The report of the Senate
Select Committee To Investigate Improper Activities in Labor-Management Rela-
tions revealed that among the most vicious practices designed to deprive employees
of their rights was that of the collusive or "sweetheart" contract. If we are to hold
that employees may not appeal to the Board without immunity against discharge
when they have reason to suspect that such collusion exists and after their desig-
nated agent has declined to give them assistance under the contract then the Board
itself gives sanction to collusion . The record of the Board is squarely to the con-
trary. I therefore find that in writing the letter to Gibbs and in filing charges with
the Board, the employees engaged in protected concerted activity and that their
discharge was in violation of Section 8(a) (1). I also find that their discharge for
filing the charges or because they were suspected of filing the charges was in violation
of Section 8(a) (4).
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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices , I shall recommend that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
Having found that the Respondent discharged its employees because they engaged
in protected concerted activity and because they filed charges against the Respondent
v See Perfect Circle Corporation Plant #5, Machining Plant, Richmond , Indiana, 114
NLRB 725. Cf. N L R B. v. Pant Milling Company, 360 U.S. 301.
is Dazey Corporation , 106 NLRB 553.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the Act or were suspected of so doing, I shall recommend that Respondent
offer the following named employees full and immediate reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority,
and other rights and privileges:
Joseph Abrunedo Edison McDonald
William Dean Beason Rudolph Nudo
Neven E. Bennett Carol G. Nugent
Willard M. Buie Murphy D. Price, Jr.
Dennis C. Burch Cecil D. Rogers
Hubert C. Dubberly Oscar Harold Ryals
Sherman L. Hudson Henry R. Tillman
Laverne R. Jenkins Edward D. Turner
Johnnie G. Jewell George E. Tuten
Wilford J. Lloyd Joseph O. Witcher
I shall also recommend that Respondent make each of the above-named employees
whole for any loss of pay he may have suffered because of Respondent's discrimi-
nation, by payment to each of them a sum of money he would normally have earned
as wages from the date of such discrimination to the date of the offer of reinstate-
ment less his net earnings during said period. The backpay will be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289.
Because the Respondent herein has not only engaged in a willful and flagrant
unfair labor practice by its summary discharge of its employees for engaging in
protected concerted activity but because it has also been found to have engaged in
unfair labor practices of varying magnitude in the past,14 I shall recommend that
a broad cease-and-desist order issue. In so doing I am mindful of the multitude of
recent decisions of the courts, including the Supreme Court, restraining the Board in
the issuance of orders which exceed in scope the Board's authority to effectuate the
policies of the Act.15 If the issuance of a broad order can be justified by the
circumstances of the case and the history of the employer then this is such a case
and such a history.
Upon the foregoing findings of fact, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) and is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Employees Committee is not a labor organization within the meaning
of the Act.
3. By terminating the employment of the employees named in paragraph 6 of the
complaint because they filed charges against the Respondent alleging violations of
the National Labor Relations Act, or because they were suspected of filing said
charges, and because they engaged in concerted activity for their mutual aid and
protection, the Respondent violated Section 8(a)(1) and (4) of the Act.
4. Respondent did not furnish financial or other support to the Union in viola-
tion of Section 8(a) (2) of the Act.
14 See Gibbs Corporation, 120 NLRB 1079; id 124 NLRB 1320; id. 129 NLRB 709
15 See, e g, Communications Workers of America, AFL-CIO and Local No 4372, et al.
(Ohio Consolidated Tele. Co ) v. N.L R B , 362 U S. 479 ; Highway Truck Drivers and-
Helpers. Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Virginia-Carolina Freight Lines) v. N.L R B, 273 F. 2d 18,15
(C.A D C) ; N L R B v. United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, at al (Midwest Homes, Inc), 276 F 2d 694 (CA 7) ; Local 636 of the
United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the U S and Canada, AFL-CIO (Detroit Edison Co ) v. N L R B , 278 F 2d
858 (C A D C) ; N.L R.B v. Bangor Building Trades Council (Davison Const Co ), 278
F 2d 287 (C A 1) ; International Typographical Union, AFL-CIO (Haverhill Gazette) v
N.L R B, 278 F. 2d 6 (C.A. 1) ; Morrison-Knudsen Company, Inc v. N L R B, 276 F 2d
63 (C A. 9) ; N.L R B v. Local 111, United Brotherhood of Carpenters & Joiners or
America (Clemenzi Construction Co.), 278 F. 2d 823 (C A. 1) ; Puerto Rico Drydock &
Marine Terminals, Inc v N L R B, 284 F 2d 212 (C.A D C) ; N L R B v Internationar
Association of Machinists, Aeronautical Industrial District Lodge 727 and Local Lodge
758, AFL-CIO (Menasco Mfg Co.), 279 F 2d 761 (C A. 9) ; NLRB. v. Local 476,
United Assoc of Journeymen & Appren. of Plumbing & Pipe fitting Ind, etc (E Turgeon
Const Co , Inc ), 280 F. 2d 441 (C.A. 1) ; N L R B. v. Lamar Creamery Company„
246 F. 2d 8 (C.A 5).
BENTON AND COMPANY, INC. 965
5. Respondent did not , by the aforesaid termination of its employees , discourage
membership in a labor organization in violation of Section 8(a)(3) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Benton and Company, Inc. and Lloyd G. Blake , George C. Stuart,
Leo Everett Jones, Russell Johnson , Dan W. Derwort, John
Crawford , Robert E . Claycomb, and Frank D. Kersey. Cases
Nos. 12-CA-1393-1 through 10-CA-1393-7 and 13-CA-1458-1.
June 5, 1961
DECISION AND ORDER
On February 13, 1961, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in a copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
did not engage in certain other unfair labor practices alleged in the
complaint and recommended that it be dismissed insofar as it contains
such allegations. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings and recommendations of the Trial
Examiner with certain modifications in the remedy as hereafter set
forth.
THE REMEDY
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices, we shall order that it cease and
desist therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
It appears that following the layoffs on March 18 and 21, 1960,
found herein to have been discriminatory, the Respondent's business
operations and workload have declined in volume and that at the time
of the hearing it was conducting its operations with a reduced work
force. It is therefore possible that some of the employees discrimi-
131 NLRB No. 124.