Hawkins-Hawkins Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1968

173 N.L.R.B. 818 (N.L.R.B. 1968)

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hawkins-Hawkins Co., Inc . and International Long - IT IS FURTHER ORDERED that those allegations of
shoremen 's and Warehousemen ' s Union , Local No. the complaint as to which no violations have been
6. Case 20-CA-4498 found are hereby dismissed.
November 14, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
I The Respondent 's exceptions are directed , primarily , to certain of
the credibility findings made by the Trial Examiner It is the Board's
established policy not to overrule a Trial Examiner 's resolutions with
respect to credibility unless , as is not the case here , the clear
preponderance of all the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc , 91 NLRB
544, enfd. 188 F.2d 362 (C A 3)
On August 21, 1968, Trial Examiner Louis S.
Penfield issued his Decision 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
attached Trial Examiner's Decision The Trial Exam-
iner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint, and recommended dismissal of such allega-
tions. With respect to the representation proceeding,
the Trial Examiner found that the unfair labor
practices herein, some of which were committed
between the date of the representation petition and
the day of the election, interfered with the election.
He therefore recommended that the election of March
30, 1967, be set aside, and ordered that the represen-
tation case be severed from this proceeding and
remanded to the Regional Director for Region 20 for
such further action as he deems appropriate. There-
after, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provision of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts the
Trial Examiner's findings,' conclusions, and recom-
mendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Hawkms-Hawkins Co ,
Inc., Berkeley, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
Statement of the Case
Louis S PENFIELD, Trial Examiner- This proceeding with all
parties represented was heard before me in San Francisco,
California, on January 30, March 26 and 27, 1968, upon a
complaint of the General Counsel of the National Labor
Relations board, herein called the Board, and answer of
Hawkins-Hawkins Co , Inc., herein called Respondent The
complaint proceeding was consolidated for purposes of hearing
with a representation proceeding with respect to issues raised
by objections to an election.' The issues litigated were
whether Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein called the
Act, and whether or not objections to the conduct of the
election in the representation case raise substantial and
material issues with respect to such election.
Upon the entire record, including consideration of briefs
filed by the parties, and upon my observation of the witnesses,
I hereby make the following
FINDING OF FACT
I THE BUSINESS OF RESPONDENT
Hawkins-Hawkins Co., Inc., is a California corporation with
its place of business located in Berkeley, California, where it is
engaged in the manufacture and distribution of highway signs,
markers, and guard rails. During the course and conduct of
such business operations, Respondent annually sells and ships
products valued in excess of $50,000 directly to customers
located outside the State of California. Upon the basis of the
foregoing, I find that at all times material, Respondent has
been engaged in a business affecting commerce within the
meaning of the Act and assertion of jurisdiction to be
appropriate.
II. THE LABOR ORGANIZATION INVOLVED
International Longshoremen's and Warehousemen's Union,
Local No. 6, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
I The complaint issued on August 11 , 1967, and is based upon a
charge filed on April 17, 1967 Objections to conduct affecting results
of the election were filed on March 31 , 1967. The Regional Director's
Report on Objections , Notice of Hearing and Order Consolidating Cases
issued on August 11, 1967 Copies of the Complaint, the Charge, the
Report on Objections and the Order Consolidating Cases were duly
served upon Respondent.
173 NLRB No. 123
HAWKINS-HAWKINS CO. 819
III THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges, in substance, that Respondent
by a variety of unlawful acts and conduct interfered with the
rights of employees during the course of an organizational
drive conducted by the Union in the spring of 1967 It is
asserted that such unlawful acts also raise substantial and
material issues regarding the conduct of an election which took
place on March 30, 1967 It is further alleged that on March
31, 1967, Respondent discriminatorily laid off two employees
in violation of Section 8(a)(3) of the Act. Respondent denies
engaging in any unlawful acts of interference, that any of its
conduct raises substantial issues affecting the election, or that
it unlawfully laid off the employees named.
Respondent employs approximately 27 persons at its
Berkeley place of business Norman Hawkins, Sr. and Norman
Hawkins, Jr., own and manage the business. Until mid-
February 1967, Robert Stevens occuplied the position of plant
superintendent. In April 1967, Charles Kelly became plant
superintendent. Unless otherwise noted, further references in
this decision to the name Hawkins will denote Norman
Hawkins, Sr., inasmuch as Norman Hawkins, Jr., played no
substantial role in the matters in dispute.
A. The Alleged Unlawful Acts
of Interference
Witnesses for the General Counsel testified to a variety of
statements and conduct attributed principally to Norman
Hawkins, Sr , and to Superintendent Stevens, which it is
contended establish that Respondent has interfered with basic
employee rights.
The Union commenced its organizational drive in December
of 1966. The Union filed a representation petition in
20-RC-7375 on January 30, 1967 Thereafter the parties
entered into a consent election agreement which resulted in
the conduct of an election on March 30, 1967. Of 27 eligible
voters, 8 cast ballots in favor of the Union, and 15 voted
against representation. Thereafter, the Union filed timely
objections, and subsequently filed the charge upon which
complaint herein is based. The allegations in the charge and the
objections parallel one another
Employee Vertna Harmon had worked for Respondent
from June 1966 until January 18, 1968, at which time she was
laid off. Harmon testified that on January 23, only a few days
after her layoff, Hawkins called her back to work. She states
that Hawkins told her there was "a whole lot of mess about
the Union" and she had been laid off because as the only
woman in her department "they thought . . [she] could easily
be swayed to go for the Union. " Hawkins told her he was
"bringing [her] back . ." and she didn't have to work too
much but "just walk around and hear, talk and see who was
for the Union and who wasn't for the Union, or see what was
said." After her return, Harmon states that she had almost
daily conversations with Hawkins either while working at the
plant or in telephone calls Hawkins make to her home.
According to her, these conversations took place on an almost
daily basis between January 23, 1967, and July 26, 1967.
Most of the statements she asserts were made to her alone, but
some instances they were made in the presence of Lois
Richards and other employees Harmon is not specific as to
precisely what was told her on any particular occasion, but
insists that in most instances the statements which she
attributes to Hawkins were repeatedly made during the period
in question 2 Among the things which Hawkins is alleged to
have told Harmon, and those other employees who overheard
him from time to time, are the following- that "[the Union]
were only out to get their dues", that "this Union had been
thrown out of-from some other union, and because they were
all a bunch of Commies", that before" [Hawkins] would let
those commie sons of bitches come into his plant and tell him
how to run it he would close it up", that if the Union came in
he "wouldn't be able to stop and talk to us and joke and kid
with us", that the Union usually sent a man into the plant who
was big and burly to "scare his little people"; that he
(Hawkins) wasn't going to allow it and that nobody was
coming into his plant to tell him how to run his business, that
if the Union came in he would "move [his] plant to Mexico"
where he "could hire wetbacks" and get the work done cheap.
Harmon further testified that Hawkins told her that if there
was a secret ballot election he had the means of finding out
who voted for the Union and that those who did would be
fired. Harmon states that at one time Hawkins advised her that
her niece, Lois Richards, who had been a recipient of welfare
at one time, had signed a union card and that "he could
arrange it where Lois could never get on that welfare again."
Harmon further testified that Hawkins named Carl Jacobson as
the instigator of the Union, telling her that Hawkins believed
Jacobson was being paid to bring the Union into the plant, and
that he was undertaking to investigate Jacobson because he
believed him to be "real crooked" and that if he caught
Jacobson "away from his machine or talking to anyone that he
could fire him right then and there on the job." Hawkins
remarked to Harmon that he liked another employee named
Joe Bell, but that Bell was "just a victim of circumstance:. '
that Bell "had let Carl persuade him into going with him" and
helping bring the Union to the plant. Hawkins urged Harmon
to speak to Bell, and to urge Bell to withdraw support from
the Union because continued support could result in the loss
of Bell's job. Still further, Harmon testified that Hawkins told
her that if the Union came in all women would be out of a job.
She states that on the day following the election Hawkins
came to her and told her that even though the Union did not
win the election he was still dissatisfied inasmuch as there had
been eight votes in its favor and he could only account for
three of them. Hawkins is alleged to have stated that he would
"find the other five sons-of-bitches if [he] got to fire
everybody here that voted for the Union." Harmon testified
that following the election Hawkins also told her that while
before the election had taken place he had promised her that
he would give raises and would build a ladies' restroom, the
Union had cost him a lot of money in attorney's fees and that
as a result the employees would now have to suffer
Hawkins specifically denies that Harmon was called back
for the purpose which she asserts. Hawkins states that he called
her back to work on January 23, because "she was m dire need
2 On July 26, 1967, Harmon testified that Hawkins called her into remember precisely what she had said in her statement , Hawkins asked
his office and asked her if she had talked to a Board agent. When she her to get a copy of it for him from the Board . Hawkins does not
responded that she had given a statement to a Board agent, she states specifically deny this . After this Hawkins ceased his almost daily
that Hawkins told her that charges had been filed against him , and asked discussion about the Union and other subjects with Harmon.
her what she had told the Board. When Harmon said she could not
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a job ... and he could use her." He does not explain the
cause of her layoff on January 18, 5 days before she was asked
to return, except to indicate that this took place while he was
away from the plant. Hawkins specifically denies the other
statements which Harmon attributes to him. As will be set
forth more fully below, however, Hawkins admits having
almost daily personal contact with most of the employees,
including Harmon, and to having had numerous telephone
conversations with Harmon at her home.
Lois Richards, Harmon's niece, testified that commencing
in January 1967 and continuing almost daily until the time of
the election on March 30, she had overheard Hawkins talking
to various employees throughout the plant During the course
of these conversations, she states, Hawkins repeatedly said that
if the Union came in "he would move his plant to Mexico or
Southern California" because he "could get the work done
cheaper." Richards also states that Hawkins had remarked that
"anybody that voted for the Union would be fired."
Employee Norman Schwind, who had been a union steward
at another job before coming to work for Respondent,
testified that some time early in January 1967 he was asked by
Superintendent Stevens if he had signed a union card. Schwind
replied that he had not. Stevens denies that he interrogated
Schwind in this manner, stating that he did have a conversation
with Schwind about the Union, but that Schwind had brought
up the matter himself. Schwind testified further that on
various occasions between January and the date of the election
Hawkins had talked to him and to other employees about the
Union. Most of these conversations took place during coffee
breaks when a group of employees would be present. Schwind
states that on many occasions Hawkins told him and the others
that he would "close the plant if [the Union] won the
election", that the Union was "made up of a bunch of
Commies", that the Union "were lying sons-of-bitches", that
Jacobson was a troublemaker hired by the Union to cause
trouble, and that Joe Bell was "a good little man" but that
Jacobson "always led him astray." Schwind also testified that
Hawkins had said to him that "he'd fire people he found
belonged to the Union or voted for the Union." Hawkins is
also alleged to have said that "he wouldn't have those
sons-of-bitches working under his roof," that they were
"commies, liars and cheats." Hawkins denies the specific
statements which Schwind attributes to him, although he
admits that he talked with Schwind and others during coffee
breaks on a variety of subjects.
Carl Jacobson and Joe Bell were both active union
proponents. Jacobson testified that he signed an authorization
card on January 20, and that during luncheon breaks there-
after he passed out dozens of cards to employees urging them
to sign and encouraging them to support the Union. Bell also
signed an authorization card and was active in passing out
cards to other employees and encouraging their union support.
Jacobson testified that Superintendent Stevens approached
him in January and queried him as to how the Union stood in
the shop. On a later occasion he states that Stevens asked him
how he was going to vote in the Union election.
Superintendent Stevens testified, contrary to Schwind and
Jacobson, that both Jacobson and Schwind had volunteered
information about the Union to him, but that he had refused
to discuss it with either one of them inasmuch as he had been
instructed by management not to discuss any union matters
with employees.
Norman Hawkins, Sr., established Respondent's business
shortly after World War II for the benefit of his two sons At
all times thereafter Hawkins continued to take an active part in
the management of the business, concerning himself particu-
larly with the work performance of the employees and with
their personal affairs. Hawkins testified that "practically every
day I went through the plant, I stopped and talked to
everybody; been doing it ever since we had a business." In
January 1967, Hawkins left the plant for a trip to Portland,
Oregon. While he was there he learned in a telephone
conversation with Superintendent Stevens that the employees
were organizing. Stevens identified Carl Jacobson as one of the
employees having knowledge of the organizational effort,
indicating that Jacobson was at the time in his office. Jacobson
was put on the line and proceeded to talk with Hawkins,
confirming Stevens' statement that organizational efforts were
under way. According to Hawkins, he "hung up and got on the
plane and come home." Hawkins states that he immediately
commenced to inform himself as to the nature of the
organizational efforts that were under way He states that "in a
plant like mine" it was not necessary to "ask anybody
anything, you walk from one end of the plant to the other end
and four or five guys will say, you know, so and so and so and
so. You don't have to ask anything." While Hawkins denies the
specific statements which Harmon, Schwind and Richards each
attribute to him, he admits that the advent of the Union
brought about a substantial disruption in operations at the
plant, and that he "couldn't tell you half the things that
happened." He says that during the period of organization he
continued his practice of going about the plant talking with his
employees, and that they continued to tell him about the
problems of union organization and "who was doing what and
all of that." When asked if he had heard from sources around
the plant that the Union was "a bunch of commies", he replied
that he had "lived here since this Union went into effect and I
never heard them called anything else."
B The Alleged Discriminatory Discharge of Carl Jacobson
and Joe Bell
As noted above, Jacobson and Bell were without doubt the
two most active union proponents. Hawkins admittedly had
knowledge of Jacobson's union activity, and believed the
advent of the Union to coincide with a deterioration in
Jacobson's work. Hawkins claims that Jacobson was responsi-
ble for extensive damage to materials, and also claims,
although this was not definitely proven, that Jacobson put
water in the fuel tanks of a heater and a forklift Hawkins also
testified that he had been told by other employees that
Jacobson had said "Old Man Hawkins ... doesn't dare fire me,
the Union's going to get him...." Jacobson denies the charges
regarding his work, or that he boasted to employees that he
was immune from discipline or discharge. Hawkins admits that
he directed Stevens to forbid Jacobson to talk to other
employees during working hours because he had become
disturbed by observing Jacobson's "electioneering," which
Hawkins describes as "pushing very hard for the Union."
Hawkins acknowledges that during the course of the campaign
he developed great animosity toward Jacobson. Hawkins
ascribes this to his conviction that Jacobson carelessly or
willfully damaged materials upon which he had worked and to
his behalf that Jacobson was responsible in the heater and the
HAWKINS-HAWKINS CO. 821
forklift incident. Hawkins concedes that he expressed his
feelings as to Jacobson's work performance to Jacobson in the
presence of other employees using profanity and challenging
Jacobson to quit. Hawkins, however, undertook no discipli-
nary action despite the gravity of the charges he made against
Jacobson, because he had been advised by his counsel that in
view of the union organizational campaign this might subject
him to charges of discrimination 3 With respect to Bell,
Hawkins concedes that he believed "Joe Bell was under the
control of Mr. Carl-couldn't get up or sit down without he
asked Carl."
On March 31, the day following the election, Jacobson and
Bell reported for work near the normal starting time of 8 a.m.
They were met by Vincent Xavier,4 the comptroller, who told
them that he had not expected that they would be returning to
work following the loss of the election by the Union, and that
he had pulled their cards. Xavier had talked to Hawkins prior
to this and Hawkins had told Xavier he had heard that some
employees would not come back if the Union lost the election,
and to pull their cards if they did not show up on time.
Although Xavier did not specifically tell Jacobson and Bell
that they were discharged, they construed this to be the case,
and asked for their paychecks. Jacobson and Bell forthwith
proceeded to the union hall to seek assistance from the Union.
A union representative communicated with Respondent. When
the employees returned to the plant to pick up their checks,
Bell was asked to speak on the telephone to Hawkins, who told
him that the pulling of the cards had been a mistake, and that
he might return to work without loss of pay. On the same day,
Jacobson was sent a telegram stating that he, too, could return
to work without loss of pay. Both did so return and each
continued to work for some time thereafter. According to
Hawkins, the cards had been pulled due to a mistake and a
misunderstanding. Despite his admitted animosity toward
Jacobson and his belief that Bell was under Jacobson's control,
Hawkins represents that he accepted the advice of his counsel,
and did not direct or intend that either man be discharged.
Although both Jacobson and Bell deny that either had ever
signified that he might quit if the Union lost the election,
Hawkins testified that he had heard to the contrary from
various sources. Hawkins states that he had intended no more
than to tell Xavier that if anyone did not show up this might
signify that he had quit, making it appropriate to pull his card.
Apparently Jacobson and Bell arrived a little bit later than
some of the other employees, and Xavier had taken it upon
himself to pull their cards. Even Jacobson admits, however,
that Xavier did not specifically state that they were discharged.
Upon their taking the matter to the Union and upon
consulting counsel, Respondent forthwith took affirmative
steps which, as we have seen, resulted in the return to work of
both.
C. Discussion of the Issues and Conclusions
The General Counsel' s witnesses , if credited, give a version
of events taking place during the course of the Union's
3 Whatever Hawkins' belief I am not satisfied that Jacobson, to a
greater extent than others , can be held responsible for the damaged
materials . Jacobson denies his responsibility . After the election the new
superintendent testified that he found an unusual amount of damaged
materials . It seems more probable that the disruption in operations
which Hawkins concedes attended the organizational drive makes
responsibility for this a collective rather than an individual matter. Nor
am I convinced by the testimony of Fred Bell, not a supervisor , that he
had observed Jacobson mishandling materials and had warned him
organizational drive that would constitute a flagrant interfer-
ence with employee rights, and would fully justify a cease and
desist order and an order setting aside the election. Most of the
alleged unlawful conduct is attributed to Hawkins himself,
with a minor amount charged to Stevens. Both Hawkins and
Stevens specifically deny the alleged unlawful conduct. Thus
we are confronted with a major credibility issue. The General
Counsel urges that his witnesses tell a consistent and believable
story. Respondent stresses the interests of such witnesses in
union organization and their disappointment at its failure.
Respondent further urges it to be highly unlikely that a
management representative fully and specifically advised by
counsel as to the importance of maintaining neutrality during
the course of an organization drive would disregard such advice
to the extent asserted by the General Counsel's witnesses.
Resolution of issues of this nature is both difficult and
perplexing. Witnesses have a tendency to see matters through
their own eyes, to color their testimony in accordance with
their own interests, and in many instances to be unaware of
the distortions in which they may engage. Their observable
demeanor is not always a revealing measure of their credibility.
In many instances, a consideration of the setting in which the
controversy arises, the relationship of the parties to one
another, and the temperament of the individuals involved will
suggest more accurately what is likely to have transpired.
Since most of the alleged unlawful conduct is attributed to
Mr. Hawkins, Sr., his personality, his relationship to his
employees and his attitude toward the Union may serve as a
key to his likely response to the organization of his employees.
It is perhaps an understatement to say that the testimony of
Hawkins discloses an intensely paternalistic attitude toward his
employees. Although Hawkins has been beset by such major
health problems that several postponements were necessary
before we could proceed with this hearing, as a witness he still
displayed himself as a man of intense feelings still capable of
displaying such force and vigor that one can readily envisage
hire as a dominating figure in Respondent's business. Espe-
cially significant is the close relationship he continually
maintained with his employees. At all times this has been on
an intimate personal basis which involved daily personal
contact with each employee which was coupled with repeated
expressions of personal concern as to both their private affairs
and their work performance. Such relationship was not limited
to the plant alone but also included relatively frequent
telephone calls to employees' homes when problems arose
where Hawkins felt he might be of assistance. As Hawkins put
it, this was "just a habit. Those people are my friends."
Hawkins' employees had never been successfully organized,
but Hawkins was not a stranger to union organizational drives
involving other unions. He clearly viewed the Union conduc-
ting the present drive as "a bunch of commies." His response
upon learning in Portland that the Union was organizing was to
take the first plane home to investigate. Although denying
specifically the various statements which the General Counsel's
witnesses attribute to him, Hawkins acknowledges that he
learned what was going on. It stands uncontradicted that
about it. The forklift and heater incidents are based on suspicion alone,
a suspicion quite possibly nurtured by Hawkins ' knowledge that
Jacobson was "electioneering ." Moreover if in fact , the charges against
Jacobson had the substance Hawkins now attributes to them, I question
that admonitions of counsel designed only to avoid charges would have
prevailed , and that management would not have sought some lawful
means to remedy the matter.
4 Variously referred to in the record as "Vince Meyers ," "Vince
Avery," and "Xavier Vincent "
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the course of his daily tours of the plant during this
period, the organizational drive was frequently mentioned and
that employees kept him fully informed about union orgamza-
tional efforts. Hawkins indicates, however, that such mforma-
tion was merely volunteered by the employees, and that it
adduced no responses from him because of the neutrality
admonitions of his counsel., However, I regard it as most
unlikely that the situation was so one sided m view of
Hawkins' admissions as to the disruption caused by the
organizational drive, his statements that he could "sit here all
day and all night and [he] couldn't tell you half the things
that happened," his acknowledgment that these happenings
had a direct relationship to the organizational drive, and his
statement that "I have been through this, as you know, four or
five times, and every time-I have some little colored girls over
there-took care of my mother-and so forth, they say Mr.
Hawkins, this used to be a happy shop, it isn't any more."
Hawkins' emotional make-up, his long standing close personal
concern for what he regarded as the best interests of his
employees, make it impossible to believe that during the
course of a union campaign which greatly aroused him he
would be able to refrain altogether from expressing himself to
many, if not all, of his employees, and making known to them
his true feelings as to the "bunch of commies" that were
seeking to represent them. It is not unknown for clients to
ignore the advice of counsel, and I am satisfied that Hawkins
was so constituted that under the circumstances he could not
have maintained silence on a subject about which he felt so
strongly, and I so find.
Even if we assume, however, that Hawkins had lapses where
counsel's advice was forgotten, there remains the question as
to whether it is likely that he would have abandoned himself
to the extent which the General Counsel's witnesses assert. As
noted above, Respondent urges this to be unlikely, pointing to
disappointment which the failure of the union's organization
engendered, as explaining the statements which the General
Counsel's witnesses attribute to Hawkins. I am not convinced,
that this suffices to serve as a basis for discrediting these
witnesses. These witnesses testified consistently among them-
selves, and the expressions they attribute to Hawkins are not
inconsistent with Hawkins' temperament or feelings. Moreover,
to reach such a result we would have to assume that the
General Counsel's witnesses were engaging in fabrication. Even
making allowances for possible inaccuracies or even exaggera-
tions, I noted nothing in the demeanor of any one of them,
nor did I see any as having such direct connection with the
Union's organizational drive that he would likely be tempted
to fabricate.
Lois Richards, although identified by Hawkins as a union
proponent, appears to have had no particular connection with
the Union, or to have had any unusual interest in the outcome
of its organizational drive. Norman Schwind was known to
have served as a union shop steward at another job. While it
appears that he favored the Union, it is not shown that he was
unduly active on its behalf. Both Richards and Schwind
testified forthrightly and credibly. Superintendent Stevens
undertook to discredit Schwind because of a dropoff in his
work performance which coincided with the opening of the
organizational drive. I do not find this convincing, both because
Schwind, denied it and because it also appears that Stevens was
later sufficiently satisfied with Schwind to employ him at
another job after both he and Schwind had left Respondent's
employ.
Vertna Harmon was the principal recipient of Hawkins'
alleged unlawful thrust against the Union. According to her,
from January 23 to July 26, Hawkins voiced almost daily
interrogations and threats relating to union matters. Respond-
ent suggests that Harmon's insistence that such conversations
continued even after the election, ceasing only when Hawkins
found that she had given a statement to a Board agent, renders
her testimony inherently incredible. I do not agree. Although
the need for expressing immediate opposition declined with
the loss of the election, I question that this diminished
Hawkins' hostility toward organization generally or toward
this Union in particular. In view of his continuing practice of
personal exchanges with employees, I see no incongruity in an
assertion that he may have continued to express himself in
opposition to the Union. Hawkins' attitude toward Harmon
suggests a real personal concern toward her. Thus Hawkins
admits that he put Harmon back to work because she needed
it. He expressed personal concern for both her health and for
her family problems. He admits that he may have telephoned
her between 5 and 50 times between January and March.
Inasmuch as Harmon was not directly identified with the
Union, it is a fair inference that she and Hawkins had a
continuing personal rapport during the course of which
Hawkins might have felt free to express himself concerning
union matters as well as other things. I find the somewhat
extravagant statements which Harmon attributes to Hawkins
to be in character. I do not see Hawkins as one who would
tend to underplay his expressions on matters about which he
felt a special concern. As a witness, Harmon impressed me as a
somewhat garrulous individual possibly given to exaggeration
and not necessarily precise as to the frequency of her
conversations or the exact times when they took place. I do
not, however, see her as a witness carrying a grudge toward
Hawkins. On the contrary, it appears that Hawkins had treated
her well, and had kept her in his employ for a long period after
an injury although she may well have been somewhat
handicapped.5
Although I question that the conversations with Hawkins
occurred with quite the frequency or were as prolonged as
Harmon's testimony would suggest, I am satisfied, and find,
that numerous conversations of this nature did occur, and that
Hawkins at various times during the period in question did
make the statements to Harmon which she relates in substan-
tially the manner set forth above.
Moreover, there is a substantial degree of consistency in the
testimony of Richards, Schwind and Harmon with regard to
the statements Hawkins is alleged to have made to them. All
three testified that they heard Hawkins threaten to penalize
employees if they voted for the Union, and to move the plant
5 Harmon injured her hand at work shortly after she returned to
work in January . I attach little significance to her assertion that this
injury came about because she was upset following Hawkins' threats to
see that her niece Lois Richards would get no more welfare Nor do I
attach significance to Respondent 's claim that she evidenced bias against
Hawkins because she retained the union attorney to represent her in a
law suit against Hawkins which arose out of this injury. I credit her
denial that she told Hawkins that the Union was paying her attorney's
fee It is understandable that a person unaccustomed to using legal
services would inquire of the Union if such a need arose and thereafter
be referred to the union attorney While the lawsuit involves legal issues
which may be resolved against Hawkins , I see nothing in the injury, in
Hawkins' treatment of Harmon thereafter , or in her retention of the
union attorney that necessarily suggest such animus by Harmon against
Hawkins that it would justify discounting her testimony.
HAWKINS-HAWKINS CO
if the Union came in. While the testimony of Harmon alone
suffices to support a finding of unlawful interference, I regard
this consistency as an additional reason for crediting each one
of the witnesses, and for concluding that the statements of
each occurred in substantially the manner which each relates.
I further credit the testimony of both Schwind and
Jacobson that Stevens interrogated them during the course of
the union organizational drive as to their interest in the Union,
and as to how they would vote in the election.
Having found, for reasons set forth above, the versions of
the General Counsel's witnesses concerning the conduct of
Hawkins and Stevens to be credible, it follows that Respond-
ent has engaged in conduct violative of the Act. Interrogations
as to union support or affiliation, threats of reprisal for union
support, threats to close or move the plant and threats to
refuse to bargain with the Union if chosen, as more particu-
larly set forth above, are acts of gross interference with basic
employee rights Accordingly, I find that during the course of
the Union's organization drive between January and March 31,
and thereafter, Respondent interfered with, restrained and
coerced employees in the exercise of the rights guaranteed by
Section 7 of the Act, thereby violating Section 8(a)(1) of the
Act.
Having found above that Respondent has engaged in various
acts of interference, restraint and coercion between the date of
the representation petition and the day of the election, among
other times, I further find that such conduct warrants setting
aside the election. The Board has consistently held that
"[c] onduct violative of Section 8(a)(1) is, a fortiori, conduct
which interferes with the free and untrammeled choice in an
election. This is so because the test of conduct which may
interfere with the `laboratory conditions' for an election is
considerably more restrictive than the test of conduct which
amounts to interference, restraint, and coercion in violation of
Section 8(a)(1)." Dal-Tex Optical Company, Inc., 137 NLRB
1782, 1787. Respondent's conduct thus may be regarded as
sufficient to have interfered with the free choice of the
employees in the election conducted on March 30, 1967.
Accordingly, it is recommended that the election heretofore
conducted on that date be set aside, and that thereafter the
Regional Director take what further action he may deem
appropriate.
D. Discharges of Carl Jacobson and Joe Bell
In addition to the alleged acts of interference, the General
Counsel contends that Respondent discriminatorily terminated
the employment of Carl Jacobson and Joe Bell on March 31,
1967, the day following the election. As set forth above, when
these employees reported for work they found their cards had
been pulled and they construed this to constitute a discharge.
However, we have also seen that both were reinstated on the
same day without loss of pay. Respondent contends that the
pulling of the cards did not constitute a discharge, and that its
conduct when the matter came to its attention makes it clear
that it engaged in no discriminatory action.
It has been noted above that Respondent not only
identified Jacobson as a principal union protagonist, but also
that Hawkins entertained a high degree of animosity toward
Jacobson which was not necessarily related to Jacobson's
union activity. It has also been pointed out that Hawkins
regarded Joe Bell as completely dominated by Jacobson, and
as having joined with Jacobson in his union activities. There is
little doubt that Hawkins believed Jacobson to be responsible
823
for damage to material, possibly even to be guilty of sabotage.
It is equally clear, however, that in Hawkins' mind this
deterioration in work performance coincided with the advent
of Jacobson's union activity and Jacobson's purported asser-
tion that this would serve to protect him from discipline
regardless of what he did. While, of course, engaging in union
activity does not invest an employee with immunity from
discipline for misconduct, counsel reasonably advised Hawkins
that in some situations it may be difficult to disentangle the
lawful from the unlawful motivation, and that discretion may
be the better part of valor if charges are to be avoided. I am
not convinced, however, that it has been sufficiently estab-
lished in this record that Jacobson was actually responsible for
the alleged misconduct, or that, if so, Hawkins would have
been motivated solely for this reason in any retaliatory action
he might undertake. In view of both Hawkins' general
antiunion bias, as found above, and in view of his specific
knowledge concerning Jacobson's union activity, I would
regard it as a fair inference that any retaliatory action which he
might take against Jacobson or Bell during this period can be
reasonably found to be unlawfully motivated.
Existence of antiunion animus, however, does not alone
establish that discrimination has occurred. In the instant case I
am not satisfied that circumstances show that the situation
ever ripened to a point where it can be established that
discriminatory action actually took place. Although both
Jacobson and Bell deny that either had expressed to other
employees that he was prepared to quit should the Union lose
the election, I have little doubt that Hawkins received
information to this effect from a number of the so-called
sources that had been supplying him with information about
the union campaign. Unquestionably the imminent departure
of two union proponents came to Hawkins as welcome news.
It does not necessarily follow, however, that at a point where
the Union had lost the election and its threat had receded, that
an employer who despite provocation had theretofore re-
frained from affirmative action for fear of charges, would now
be likely to embark on such a course. It is more reasonable to
conclude that Hawkins in directing Xavier to pull the cards of
these two employees before it had been definitely established
that they had departed was yielding to wishful thinking. He
hoped that they had actually gone, and acted on the
assumption that his hopes were correct. It is more significant,
however, that when confronted with knowledge that Jacobson
and Bell had not intended to quit that Hawkins acted
immediately, and took steps to bring about their return with
no loss of pay. Thus even assuming that we find sufficient
antiunion animus to support an inference of unlawful motiva-
tion, I am not convinced that in the present instance that the
pulling of the cards amounted to more than a mistake and a
misunderstanding. Accordingly, I do not find it to be a
deliberate act of discrimination within the meaning of Section
8(a)(3), and I shall recommend that the charges of discrimina-
tion against Jacobson and Bell be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section I, above,
occurring in connection with the operations of Respondent
described 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.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in unfair labor
practices violative of Section 8(a)(1) of the Act, I shall
recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Since the election was a consent election with all matters
pertinent thereto to be ruled upon by the Regional Director, I
shall sever the representation case and remand it to the
Regional Director to take what further action he deems
appropriate in view of my recommendations.
The unfair labor practices committed by Respondent cover
a sufficiently broad spectrum to signify that they strike at the
heart of the rights guaranteed employees by Section 7 of the
Act.6 The inference is warranted that Respondent maintains
an attitude of opposition to the purposes of the Act with
respect to the protection of the employees in general. It will,
accordingly, be recommended that Respondent cease and
desist from infringing in any manner upon the rights guaran-
teed in Section 7 of the Act.'
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon
the entire record in this proceeding, I make the following
conclusions of law-
1 Hawkins-Hawkins Co., Inc., is an employer within the
meaning of Section 2(2) of the Act engaged in a business
which affects 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 unlawful interrogations and by threats of reprisals,
refusal to bargain, plant closing or removal, as found above,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. By pulling the cards of Carl Jacobson and Joe Bell on
March 31, 1967, Respondent did not engage in unfair labor
practices within the meaning of Section 8(a)(3) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that Respondent, Hawkins-Hawkins
Co., Inc., its agents, successors, and assigns , shall.
1. Cease and desist from interrogating its employees con-
cerning their union activities or affiliations, threatening
employees with discharge or other reprisals if they support a
union, threatening to close or move the plant or not to bargain
with any union its employees might choose as their statutory
representative, or in any other manner interfering with,
restraining , or coercing employees in the exercise of their right
to self-organization, to form labor organizations , to join or
assist the Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, or
to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act.
(a) Post in conspicuous places at its usual place of business,
including all places where notices to employees are customarily
posted, copies of the attached notice marked "Appendix."8
Copies of said notice, to be furnished by the Regional Director
for Region 20, shall, after being signed by Respondent, be
posted by it immediately upon receipt thereof in Respondent's
place of business and maintained by it for 60 consecutive days
thereafter in such conspicuous places. Reasonable steps shall
be taken by Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in writing,
within 20 days after the date of receipt by Respondent of a
copy of this Decision, what steps it has taken to comply
therewith .9
I FURTHER RECOMMEND that the allegations of the
complaint pertaining to the alleged unlawful discrimination
against Carl Jacobson and Joe Bell be dismissed.
IT IS HEREBY ORDERED that the representation pro-
ceeding, Case 20-RC-7375, be, and the same hereby is,
severed from this consolidated proceeding, and that the
representation case be remanded to the Regional Director of
Region 20 to take what action he deems appropriate pursuant
to the recommendations with regard to the election which are
set forth above.
6 N.L.R.B. v. Entwistle Manufacturing Co, 120 F 2d 532 (C.A 4).
7 May Department Stores v N. L R.B., 326 US . 376, Bethlehem
Steel Co. v . N.L.R.B. 120 F.2d 641 (C.A.D.C.).
8 In the event this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words
"the Recommended Order of a Trial Examiner " in the notice. In the
further event that the Board 's Order is enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the
words "a Decision and Order "
9 In the event this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the said Regional
Director , in writing , within 10 days from the date of this Order, what
steps have been taken to comply therewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT unlawfully interrogate our employees
concerning their union activities or affiliations, or threaten
them with reprisals for supporting International Longshore-
men's and Warehousemen's Union, Local No. 6, or any
other labor organization, or threaten to close or move the
plant or threaten not to bargain with any union our
employees may choose as their statutory bargaining repre-
sentative.
WE WILL NOT in any other manner interfere with,
restrain or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
All employees are free to become or remain or refrain from
HAWKINS-HAWKINS CO. 825
becoming or remaining members of the above-named or any This notice must remain posted for 60 consecutive days
other labor organization. from the date of posting, and must not be altered, defaced, or
HAWKINS-HAWKINS CO.,
covered by any other material.
INC.
If employees have any question concerning this notice or
(Employer)
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 13050 Federal Building,
Dated By 450 Golden Gate Avenue, Box 36047, San Francisco, Califor-
(Representative) (Title) ma 94102, Telephone 556-0335.