Hawkins-Hawkins, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 1958

121 N.L.R.B. 740 (N.L.R.B. 1958)

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hawkins-Hawkins, Inc. and Printing Specialties & Paper Prod-
ucts Union, Local 382, AFL-CIO. Case No 20-CA-1308
August 29, 1958
DECISION AND- ORDER
On February 24,1958, Trial Examiner James R Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged 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 filed exceptions to the
Intermediate Report and a supporting brief
Pursuant to the provisions of Section 3 (h) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings 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 Inter-
mediate Report, the exceptions, the brief, and the entire record in
this case, and hereby adopts the findings, _conclusions, and recom-
mendations of the Trial Examiner ,
ORDER
Upon the entire record herein, pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, Hawkins-Hawkins, Inc , Berkeley,
California, its officers, agents, successors, and assigns, shall:
1 Cease and desist from
(a) Discouraging membership in a labor organization by discrimi-
nating in regard to hire or tenure of -employment of any employees
because of their union membership Qr;,because of their sympathy for
or activities on behalf of any labor or4aiization, by discharging them
and thereafter failing and refusing to, reinstate them, or by discrimi-
nating in any other manner in regard to the hire and tenure of
employment of any employee to discourage membership in a labor
organization
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Printing-Specialties & Paper
Products Unioi, Local 382, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through r4sentatives of their own
choosing, and to engage in concerted activities for the purposes 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
121 NLRB No 93.
HAWKINS-HAWKINS, INC. 741
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 to Carl Barrentine, Wayne Barrentine, Donald H. Pugh,
and Donald M. Pugh, immediateandfull reinstatement to their former
or substantially equivalent positions, without prejudice - to their
seniority or other, rights and privileges.
(b) Make each of the aforesaid employees whole for any loss he
may have suffered as a result of the Respondent's discrimination
against him by payment to each of a sum of money computed in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) Post at its=plant in Berkeley, California, copies of the notice
attached hereto marked "Appendix." 1 Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region (San
Francisco, California), shall, upon being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof and be maintained by it for a period of sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees 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.
(d) 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 and the rights of employment under the terms of this Order.
(e) Notify the aforesaid Regional Director in writing, within ten
(10) days from-the-date of-this Order, what-steps the Respondent
has taken to comply herewith.
1 In the event that this Order is enforced by a decree of a United States Court of
Appeals, the notice shall be amended by substituting for the words "Pursuant to a
Decision and Order" the words "Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order."
APPENDIX
NOTICE- TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to form labor organizations, to join or assist Printing Specialties
& Paper Products Union, Local 382, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to each of the below-named employees immediate
and full reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights and
privileges, and we will make each whole for any loss suffered by
him by reason of the discrimination against him.
Carl Barrentine Donald H. Pugh
Wayne Barrentine Donald M. Pugh
All our members are free to become, remain, or refrain from
becoming or remaining, members of the above-named Union or any
other labor organization.
HAWKINS-HAWKINS, 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on July 22, 1957, and a second amended charge filed on Sep-
tember 3, 1957, by Printing Specialties & Paper Products Union, Local 382, AFL-
CIO, herein called the Union, the General Counsel of the National Labor Relations
Board, herein called the Board, issued a complaint dated September 17, 1957, against
Hawkins-Hawkins, Inc., herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) and`Section 2 (6) and (7) of the National Labor Rela-
tions Act, as amended, 61_Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges, in substance,
that the Respondent questioned its employees about their activities on behalf of the
Union, promised and gave wage increases in an effort to defeat the organization of the
employees by the Union, threatened and warned employees that it would close down
and sell the operations rather than negotiate or bargain with the Union; and on July
16 and 17, 1957, discharged four named employees because of their activities for and
on behalf of the Union, and thereafter refused to reinstate said employees.
Respondent's answer denied certain jurisdictional allegations, admitted the dis-
charge of the named employees but denied that the discharge was for the cause
alleged, and denied the allegations of the unfair labor practices.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
in San Francisco, California, on October 23, 24, 28, 29, and 30, 1957. All parties
were represented and were afforded ample opportunity to examine and cross-examine
witnesses, and to offer evidence pertinent to the issues. At the close of the General
HAWKINS-HAWKINS, INC. 743
Counsel's evidence on commerce, the Respondent moved to dismiss the complaint.
The motion was denied. At the close of the hearing, the General Counsel moved to
amend the complaint to conform to the evidence with respect to immaterial matters,
such as names and dates, and the motion was granted. At the close of the evidence,
the parties argued orally on the record. At the request of the Respondent, a date
was set for the filing of briefs. No briefs were received.
Upon the basis of the entire record in the case, and from my observation of the
witnesses, I make-the following:
FINDINGS OF FACT
L THE BUSINESS OF RESPONDENT
The complaint alleges and the answer admits that the Respondent is a California
corporation having its principal office and place of business in Berkeley, California,'
where it is engaged in the business of manufacturing, processing, and selling traffic
signs and symbols. The answer, however, denied that the Respondent's business
during 1956 or 1957 met the Board's criteria for assertion of jurisdiction.
The General Counsel offered evidence with respect to the direct and indirect out-
of-State sales of the Respondent for the calendar years 1956 and 1957 to the date of
the hearing. Since the Respondent's combined direct and indirect out-of-State sales
for 1956 proved to be less than $100,000, the General Counsel abandoned his
reliance upon that year and relied solely upon the calendar year 1957 to the date of
the hearing. No figures were offered separately for the final quarter of 1956, so
they could not be used in conjunction with the figures for the first 9 months of 1957
to make up a complete year. Although the Respondent contended at the hearing
that no figures should be considered for sales made after the date of the issuance of
the complaint, I received evidence of figures available as late as October 25, 1957.
To the latter date in 1957 the Respondent's sales and delivery of goods to points out-
side the State of California amounted to $40,220. Sales of its products to the State
of California, Division of Highways, for use on State and interstate highways
amounted to $59,070, exclusive of the 4 percent sales tax which, under Board deci-
sions, is not deducted in determining dollar volume,2 and the Respondent's sales dur-
ing said period in 1957 to companies which annually do in excess of $50,000 worth
of business outside the State of California amounted to $9,061.49.3
In determining the volume of business under the Board's jurisdictional standards,
the Respondent would exclude sales to the State of California of signs, posts, road
markers, and the like, for use on State highways. No cases were cited, nor are
any known which deal with the sale of road markers and signs for use on State and
interstate highways. However, I find that such signs and markers are essential to
the effective operation and use of State and interstate highways, and that there is no
substantial difference between this case and those in which materials for building
or maintaining interstate rights-of-way have met the Board's indirect outflow stand-
ards.4 The Respondent's contention that direct and indirect sales should not be
combined in ascertaining the dollar volume of the Respondent's interstate business
is rejected .5
i The plant is located in Emeryville, California, but its post office address is Berkeley.
z Pacifc Fine Arts, etc., 116 NLRB 1607; South Florida Liquor Distributors, Inc., of
Tampa, 113 NLRB 109
s Following a stipulation on this figure, subject to check of its accuracy, the parties
stipulated that, if the Respondent's accountant were called to the stand, he would testify
that sales to companies within the State of California which were engaged in commerce
within the meaning of the Act and within the Board's standards for asserting jurisdiction
would be in, the sum of $8,354.18 from January 1 to October 25, 1957. I find that
whichever figure is correct, the Respondent's sales under Board criteria would exceed
$100,000 for the period in 1957 up to October 25, without regard to business done for the
balance of the year and without including the amount of the tax on sales within the
State of California.
4 Madison County Construction Co., 115 NLRB 701 ; White's Uvalde Mines, 117 NLRB
162; G C. McBride Company, 110 NLRB 1255. In the McBride case the Board did not
assert jurisdiction, because It regarded crushed rock used for track ballast as not being
"directly utilized" in the railroad's business operations, but the Board subsequently
abandoned the requirement of direct utilization. Whippany Motor Co., Inc, 115 NLRB 52.
Pacific Fine Arts, etc., supra (direct and indirect outflow combined) ; and see Central
Cigar A Tobacco Co., 112 NLRB 1094; Autry Greer l Sons, 112 NLRB 44; Kenneth
Chevrolet Company, et at, 110 NLRB 1615; The Brass Rail, Inc., 110 NLRB 1656 (direct
and Indirect inflow combined).
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent strenuously objected to any evidence of its sales or volume of
business following the date of the issuance of the complaint. However, I reject
this contention because the Board is not concerned with the characteristics of the
annual period selected for determination of jurisdictional amount, whether it be a
calendar year or otherwise.9 And the Board has in a number of instances, where
complete figures for a full year are not available, projected the respondent's business
for the balance of the year on a pro rata basis in determining whether the dollar
volume of the respondent's business is sufficient to meet the requisite jurisdictional
standards.? An offer of proof by the Respondent to show that the Respondent had
been removed from the list of qualified bidders on State contracts and that it sup-
posedly would make no more sales to the State Division of Highways during 1957,
was rejected. Such evidence is not conclusive of the fact that the Respondent could
not be reinstated on the list of qualified bidders. In any event, however, the Board
is not inclined to consider such evidence .8
On the basis of the evidence in this case I find that the Board has asserted, and
should assert, jurisdiction.
If. THE LABOR ORGANIZATION INVOLVED
It was stipulated during the hearing and I find that Printing Specialties & Paper
Products Union, Local 382, AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The organization of the Union
On the night of July 3, 1957, a group of the Respondent's employees came to the
home of employee Jack Gilpatrick to meet John Ferro, business representative of
the Union, and to discuss organization. At this meeting five of the Respondent's
employees 9 signed union-authorization cards, and on July 5 Donald M. Pugh, one
of the employees who had signed a card on July 3, gave a blank card to employee
Rudolph Grziwok, who signed it and returned it to Pugh to mail to the Union.
On about July 8, 1957, Ferro telephoned the Respondent and spoke with Norman
L. Hawkins, Sr., the Respondent's president,'° asking for an appointment to discuss
a union shop. Hawkins referred Ferro to the Respondent's attorney, Gene Rhodes.
That day or the next Ferro telephoned Rhodes and requested a meeting to discuss
"unionization" of the plant. Rhodes made an appointment to meet 2 days later.
On the appointed day Ferro met with Rhodes and told him about the Union. Rhodes
asked if the Union had cards signed. Ferro told him that he did and Rhodes asked
to see them. Rhodes said he would agree to a checkoff of the cards, but would not
show them to management at this time. Rhodes said that he would contact manage-
ment and then set up a meeting. Rhodes failed to get in touch with Ferro
before the discharges hereinafter discussed.
B. Interference, 'restraint, and coercion
About noon on a day which Parsons fixed as July 16 (but which the testimony
of Gilpatrick would place on July 8), Hawkins called Foreman Joseph` Parsons-to
his office and told him that he had received information that the men in the shop
had been organized and that all belonged to a union. He asked Parsons if he knew
anything about it. Parsons said that he did not. Hawkins directed Parsons to ask
the men if they belonged to the Union. Parsons demurred, but Hawkins insisted
and told Parsons to ask Gilpatrick, thinking that he would be likely to be friendly
OF. M. Reeves and Sons, Inc., 112 NLRB 295; and see U. M. W. District 2 (Mercury
Mining and Construction Corporation), 96 NLRB 1389.
TO & A Lumber Company, 91 NLRB 909; Wezll's, Inc, 108 NLRB 731; American
Television, Inc. of Missouri, 111 NLRB 164; Safrit Lumber Company, Inc., 111 NLRB
657; Carpenter Baking Company, 112 NLRB 288, Denali-McGray Construction Company,
118 NLRB 109. In the latter case the Board found jurisdiction based on plans for
future purchases.
O See Palace Knitwear Co., Inc., 93 NLRB 872; Jos. McSweeney & Sons, Inc.,
119 NLRB 1399.
O Jack Gilpatrick, Carl Barrentine, Wayne Barrentine , Donald H . Pugh, and Donald M.
Pugh.
m As no occasion arose to mention Norman L. Hawkins, Jr., herein, any reference 'to
Hawkins is to be understood to refer to President Hawkins.
HAWKINS-HAWKINS, INC. 745
to the Respondent . Parsons went to the shop and asked Gilpatrick if he knew any-
thing about the boys joining the Union. Gilpatrick said that he did not. On July 18,
Parsons, accompanied by Thomas Hammock, foreman of the silk screening depart-
ment , specifically asked Gilpatrick and Grziwok, who was working with Gilpatrick,
if they had joined the Union. They denied that they had. Parsons and Hammock
went to Hawkins and reported what Gilpatrick and Grziwok had said. Certain
differences in the testimony of Parsons, Hammock,, Grziwok, and Gilpatrick, make
it difficult to determine on how many occasions Parsons questioned Gilpatrick and
Grziwok: , , However, from all the testimony , I conclude that Parsons' questions
concerning Gilpatrick's knowledge of the other employees' joining the Union was
asked on July 16 before the layoff and that his question about whether Gilpatrick
and Grziwok had joined the Union was asked on July 18, when Gilpatrick and
Grziwok arrived late and were apparently suspected of having joined the others in
the Union."
On about July 16 Gilpatrick told Parsons that he was going to quit. On the
following day, at about noon , according to Gilpatrick, he was called to Hawkins'
office. While there, he told Hawkins he was going to quit because he could make
more money elsewhere . Hawkins told him that things were "pretty rough" in
business, but he said he would give Gilpatrick what he could afford and that he
had directed the bookkeeper to give him a raise. Gilpatrick said he would stay
until Hawkins could replace him. According to Gilpatrick, Hawkins said he would
have to let one man go and asked if Gilpatrick would rather work with Grziwok
or with Wayne Barrentine . Hawkins denied having said he would have to let anyone
go and he fixed the conversation with Gilpatrick as 4 or 5 days earlier than July 17:
I conclude that Gilpatrick was confused about the date of his conversation with
Hawkins and that he did not learn of the proposed layoff of one employee at this
time . Hawkins said that the employees appeared to be dissatisfied and bunched up
during their break time, apparently asking Gilpatrick for an explanation, because
Gilpatrick answered that he "did not know exactly."
On the evening of July 16 Parsons commented to Gilpatrick that it was going to
be lonesome around there, that only "three of us" would be left (i.e., in his depart-
ment ). As only I employee was terminated on July 16, Parsons' statement pre-
dicted the layoff of 3 more employees which was to leave only Parsons, Gilpatrick,
and 1 more employee in the shop.
Gilpatrick testified that on July 18 or 19, he met Hawkins at the drinking
fountain when he went there for a drink, that-he commented to Hawkins that the
Union was going to organize, and that Hawkins replied that he did not want any
union there dictating his business. He further testified that on July 18 or 19
Parsons and Hammock came to him and asked if he was going to join the Union
or stay with them and be nonunion. Parsons told him ,that Hawkins had asked
him to find out.
On July 19, when the employees remaining employed were paid, they each
received a wage increase of 10 cents an hour. Grziwok testified that, after having
worked for the Respondent in the summer of 1956 (he being a college student
during the rest of the year) he returned to work for the Respondent in late May of
1957. At that time, Parsons told him he would be given a raise when Parsons
thought Grziwok was back "in the swing of things." In late June, Grziwok asked
Parsons if the latter thought he was back in the swing of things. Parsons replied
that he was. Grziwok then asked, "How about the raise?" Parsons told Grziwok
that he had asked, but that Hawkins had said he could not afford to give one, that
two employees were ahead of Grziwok and should have had a raise and that he
was worried that he would not be able to keep them at the rate of pay they were
getting. On July 19, however, after the layoff hereinafter related, Grziwok received
the general increase retroactive to the first of the week.
n In making findings on the basis of the conflicting testimony in this section, I have
considered the extent to which the testimony of each witness was corroborated and to
which, from the testimony and demeanor of the witness I believed it to be reliable. The
testimony of witness Grziwok appeared to be the most reliable and the least affected by
personal feelings . Except as to dates, the testimony of Parsons substantially jibed with
the testimony of other witnesses. I found his testimony to be honest and as accurate
as the vagaries of memory permit. Gilpatrick's testimony of events and statements of
others likewise was as accurate as his memory made possible . Gilpatrick's accuracy,
I judge, was affected only insofar as he sought to place his own words or conduct in the
most favorable light. The testimony of Hawkins , Sr., was affected by what appeared to
me to be rationalization , by reliance on negatives pregnant in making denials, and in
some instances by failure of memory in critical matters. . On less critical - Issues, his
testimony appeared to express his memory of the facts.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Friday, July 19, Grziwok and Gilpatrick were each asked if they would work
on Saturday Grziwok said that he would have been glad to if he had had more
advance notice but that he had a previous engagement for Saturday Gilpatrick
said he would work He did not, however, show up on Saturday, Instead, he went
with Ferro and the dischargees to see Hawkins' attorney, Rhodes That Saturday
night (July 20) Hawkins went to Gilpatrick's house to ask why Gilpatnck had not
been to work that day Gilpatrick told Hawkins that "we" went to see Hawkins'
attorney and were going out on strike on Monday and that there would be a
picket line on Monday Hawkins asked Gilpatrick if he had joined the Union and
Gilpatrick admitted that he had Hawkins asked the names of all who had joined
and Gilpatrick told him Hawkins asked if Parsons or Hammock had joined and
3ilpatrick told him they had not Hawkins commented that he was sorry to see
that Gilpatrick had joined but that he had no hard feelings He told Gilpatrick,
according to the latter, that if he "couldn't get around it any other way he would
either farm the business out or sell it," that he did not want- any union and did not
want to have a dictator telling him how to run his business and that he was "not
going to have it "
Albert Utecht, the Respondent's shipping clerk, testified that on the evening of
July 17 he saw Parsons pulling some timecards and, remembering Parsons' having
pulled one the night before when Parsons laid off Carl Barrentine, Utecht com-
mented on-the fact to Foreman Hammock, saying, "Tommy, he is pulling the time
cards again I guess it's me today " , Hammock said no, they were going to lay
off the two Pughs and Wayne Barrentine On the same day, presumably, although
this is not clear from the record, when Hammock, Parsons, and Utecht were at the
drinking fountain, Hammock asked Utecht, referring to the three men laid off on
July 17, "Did you know they had joined the Union?" Utecht said that he did not
Parsons said, jokingly, "Oh, yeah, he probably knew about it all the time He
probably wanted to join it himself " Utecht replied, as a jest, that he had joined
or that he knew about it all the time On July 18, the day that Gilpatrick and
Grziwok arrived late because they had attended a union meeting occasioned by the
layoffs of the day before, Utecht arrived on time and Parsons remarked, according
to Utecht, "I guess you're not one of them " Utecht asked what Parsons meant and
Parsons said, "You are not one of them that joined the Union " Utecht said that
he was not On this same day or the evening of July 17 after the layoff, Parsons
told Utecht that the men were laid off because they had joined the Union
Although the witnesses who testified to the foregoing incidents were not clear
about dates and sequences, there is no doubt that they occurred Parsons testified
to having asked Gilpatnck if he knew anything about the employees' joining the
Union, and Hawkins admitted that he had instructed Parsons to ask questions, but
he testified that he did so on advice of his counsel to determine who was represented
by the Union 12 Hawkins also substantially confirmed Gilpatrick's testimony con-
cerning Hawkins' visit to Gilpatnck's house on July 20, including the fact that
Hawkins had asked Gilpatrick who had joined the Union
Considering all the circumstances in the case, I find that by Parsons' and Hawkins'
questioning of employees about union membership, as related, the Respondent inter-
fered with, restrained, and coerced its employes in the exercise of the rights guar-
anteed in Section 7 of the Act. Furthermore, if an employee such as Utecht had had
the freedom of choice beforehand, nothing would be better calculated to restrain
him from joining the Union than Parsons' act of informing Utecht that the men laid
off were terminated because they had joined the Union,13 coupled with Parsons
attempt, whether or not in a jocular vein, to ascertain Utecht's attitude toward the
Union By such conduct, likewise, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act
Hammock's question of Utecht as to whether or not Utecht knew that the laid-off
employees had joined the Union may or may not have been asked as an attempt
to learn Utecht's attitude toward, or interest in, the Union If so, however, it does
not appear on the surface, and as Hammock did not couple such question with any
intimation that the union membership of the laid-off employees caused their dis-
ii Hawkins set the date of his instruction to Parsons as July 18 I am convinced and
find that this was not the only time when he instructed Parsons to ask Gilpatrick about
employees' joining the Union. Even if Hawkins gave such instructions on advice of
,counsel, the questioning was, under the circumstances here, interference , restraint and
coercion
Is See Armstrong Cork Company v N L R B , 211 P 2d 843 (C A 5)
HAWKINS-HAWKINS, INC. 747
charge, I am not convinced that Hammock's question should be found to be, and
I do not find it to be, coercive.
Hawkins' questioning of Gilpatrick on July 20 about who had joined the Union
and his statement to Gilpatrick that he was not going to have a union and that if
he could not get around it any other way he would sell the business or farm it out,
in the light of Respondent's general opposition to the Union, constituted interference,
restraint, and coercion within the meaning of the Act 14
In view of the timing of the wage increase of July 19, the evidence regarding
Grziwok's failure earlier to receive an increase, Hawkins' declared disinclination
to deal with a union, and all the evidence indicating opposition to the Union, I con-
clude and find that such increase was intended as an allurement to the remaining
employees to restrain them from joining or aiding the Union. As such, it constitutes
interference, restraint, and coercion within the meaning of the Act 15
C. The discharges
When, on July 16, Parsons returned to Hawkins' office to report that Gilpatrick
had said he knew nothing about the employees joining the Union, Hawkins decided,
according to Parsons, that he would have to get rid of the men before the Union
called for a vote. After some discussion, Hawkins decided, to create the appearance
of running out of work, to lay the employees off one at a time, the first one to be
Carl Barrentine because he was the last one hired. Parsons was given the job of
laying Barrentine off that evening. Parsons asked Hawkins what reason to give.
Hawkins said to give him any reason he wanted to. (Hawkins admitted saying this.)
Parsons said that he was not doing the laying off, so he wanted Hawkins to give
a reason. Hawkins told Parsons to tell Barrentine that it was for lack of work.
When Hawkins told Parsons that he would lay all the men off, Parsons said he
(Parsons) would have to close the shop completely down. Hawkins then decided
that he would lay off 4 of the 6 employees who worked in Parsons' shop so that the
Union would not have a majority left. Hawkins, speculating on likely union men,
thought the 2 Barrentines and the 2 Pughs would be the ones who would have the
most to gain if they joined the Union and that Gilpatrick and Grziwok, on the other
hand, would not have so much to gain; so he decided to keep the latter 2. At this
time, Hawkins did not decide who would immediately follow Carl Barrentine, but
it was expected that all four would be laid off before the end of the week. Parsons
picked up a check for Carl Barrentine's time and toward the end of the day, July
16, 1957, notified him that he was being laid off for lack of work. He told Barren-
tine that he considered him a good workman and that he would give him a recom-
mendation.
On July 17, Hawkins again called Parsons to his office and said he had received
further notification concerning the Union and decided that he had no more time
and had to get rid of the other three men. He told Parsons to discharge them.
Parsons asked whether he wanted it done right then, and Hawkins told him to lay
them off at 4:30. Parsons asked if he should give the same reason, and Hawkins
told him yes. That evening just before quitting time Parsons got the checks for
the three men, Wayne Barrentine, Donald H. Pugh, and Donald M. Pugh, and noti-
fied them that they were laid off for lack of work. Following the layoff of the 17th,
Hawkins told Parsons that they would work only on the State job that they had on
hand and that the rest would have to wait for a while. This meant to Parsons that
he would have to work along with the two remaining employees.
On July 18, Grziwok and Gilpatrick did not come in at the starting time, but
came in an hour or an hour and a half late. Shortly after 8 o'clock, when the
2 had not shown up, Hawkins told Parsons he had decided they were in the Union
and as far as he was concerned they were out, that is, did not work there any more,
and he instructed Parsons to hire 4 more men. Parsons asked where to hire them
and Hawkins said the usual sources. To Parsons this meant the Salvation Army and
the State Employment Service. Before Grziwok and Gilpatrick arrived, Parsons
had telephoned and requested two men from each of the aforesaid sources. When
14 Parma Water Lifter Company, 102 NLRB 198; Connor Foundry Company, 100 NLRB
146. At the hearing, Hawkins deprecated the Union as a desirable representative of the
Respondent's employees, referring to the Union as ragpiCkers.
u N. L. If. B. v. Jamestown Sterling Corporation, 211 F. 2d 725 (C. A. 2) ; N. L. If. B. v.
Louisville Container Corp., 209 F. 2d 654 (C. A. 6) ; N. L. if. B. v. Dallas Concrete Co.,
212 F. 2d 98 (C. A. 5) ; Home Dairies Company, 105 NLRB 323, enfd. 211 F. 2d 784
(C. A. 9) ; Miller Mercantile Company, Inc., 118 NLRB 835; Joslin Dry Goods Company,
118 NLRB 555.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grziwok and Gilpatnek arrived on July 18 Parsons told them that he had thought
it was a 100-percent walkout Grziwok and Gilpatrick said that they had been
detained Parsons said that Hawkins was "stewing " Grziwok and Znlpatrick asked
if they were supposed to continue working and Parsons went to the office and told
Hawkins that Gilpatnck and Grziwok had come in, and asked if fie should put them
to work Hawkins said he should As previously stated, Hawkins that day asked
Parsons to question Gilpatrick and Grziwok about their union membership During
the day the men that Parsons had called for from the Salvation Army and the State
Employment Service arrived, making a total of 6 employees in Parsons' department,
but Hawkins said that perhaps it was not a good idea to keep all of them and that
2 should be laid off Parsons therefore laid off two that night
Saturday work was not customary, but, as previously stated, Grziwok and Gil-
patrick were asked to work on the Saturday following the layoffs
Following that week, the Union struck and posted a picket line Gilpatrick and
Grziwok joined the strike and picketed The Respondent continued to operate,
but in Parsons' shop there was a rapid turnover in personnel
The Respondent offered a variety of reasons for laying off the four employees
on July 16 and 17 These included insufficient work, general lack of efficiency, and
individual faults
Hawkins testified that, after receiving from his accountant the profit and loss
statement for the first quarter of 1957, which showed a loss, he made an analysis
of the business and an investigation and decided that the Respondent was inefficient,
that it was not getting out production, and that it needed better equipment and better
qualified-men-that there were 3 or 4 employees who were not qualified Having
received reports on these men and having observed that they were getting cliquey
and that there was a change in attitude-an indifference-on their part, according
to Hawkins, and, what with complaints of foremen about not having competent
men the profit and loss statement forced an action
This explanation does not carry conviction The profit and loss statement was
accompanied by a letter from the Respondent's accountant, and this letter is dated
on March 31, about 31 months before the termination of the 4 men Although
Hawkins testified that Foreman Parsons had complained about the efficiency of the
men, Parsons gave another version He testified that on July 16 he had a conver-
sation with Hawkins concerning a reason to give for the layoff According to
Parsons, Hawkins said that perhaps they should give the reason as inferior work.
When Parsons replied that they were not doing inferior work, Hawkins asked,
"Would they compare to journeymen9" Parsons said they would not but that, for
the wages they were getting, he was satisfied with their work although he would
not be satisfied with some of it if they were receiving journeymen's scale of pay In
any event, inefficiency was not the reason given to the men at the time of the layoff
Furthermore, when the Respondent hired replacements for the men laid off, it did not
hire skilled or trained men, but hired inexperienced men, through such agencies as
the Salvation Army and the State Employment Service, and, when the Respondent
hired them, it had no assurance that they would be more capable than those laid off
This, to say the least, is an inefficient way of attempting to get efficiency Hawkins
testified that for 6 weeks the Respondent had a lack of help-that they had to train
some more men Hammock testified that before July 16 he had one man assisting
dim Later he had 2, 1 being a Salvation Army supplied man There is no evidence
of identity of the one assistant that Hammock had before July 16 On the evidence
at hand I would judge that Donald H Pugh was the only one assisting Hammock
before Tacato returned during the week of the strike Taking into account the
remoteness of time of the profit-and-loss statement from the days of the discharges
as compared to the proximity of the time of organization of the Union and its
notice to the Respondent thereof, the hiring of unskilled replacements, and all the
other facts in the case, I am persuaded that the profit-and-loss statement was not
a prompting cause of the discharges or that a need for getting more efficient pro-
duction motivated the discharges
According to a memorandum 16 prepared by a State analyst, following an inspec-
tion of the Respondent's plant on September 11, 1957, to determine the cause of
late deliveries on the State's order, placed on May 9, 1957, the Respondent's opera-
tions were described as inefficient because of methods used and because of lack of
space This was a condition which apparently existed in July as well From in-
formation, apparently supplied by the Respondent, the analyst concluded that "proper
planning and asking for needed advice would have assisted [the Respondent] in
their production problems, however, the labor problems did occur during the con-
Id This memorandum was introduced in evidence by the Respondent.
HAWKINS-HAWKINS, INC. 749
tract time and this meant the loss of several key men and some valuable time."
Discharge of four trained men at a time when the Respondent had delivery dates
to meet on a large order scarcely takes on the appearance of an attempt to improve
efficiency , especially since the Respondent did not take proper steps to replace them
with better qualified men.
Hawkins, aside from his description of the four dischargees as incompetent,
mentioned particular faults or deficiencies in a few of the dischargees . Hawkins
testified that he had instructed the elder Pugh , Donald M ., who is the father of
Donald-H., to build a rack in a certain way and he had not done it. It is not clear
whether or not Hawkins meant that Pugh had not made the rack or had made it
but not in the manner he was instructed to make it . When the elder Pugh was
on the stand, he was not asked about such a rack by Respondent 's counsel. On
direct examination Pugh testified that at break time on July 17, the day he was told
he was laid off, Hawkins had spoken to him about building a door between the
old and new silk screening rooms the first chance he got . He never got the chance,
however , in view of the fact that he worked on production the rest of that day and
was laid off that evening . , There is no evidence that Pugh was criticized about work,
or lack of it , on a rack , and that it is certain that he was not told that he was,
discharged for that reason . I am not convinced that any such cause entered into
the. discharge of the elder Pugh . Hawkins testified that Donald M. Pugh was
"very slow , but he was a good , what he did he did it well."
Hawkins testified that on July 16 Carl Barrentine had broken "a very expensive
piece of equipment" ( an electric switch panel which had been brought out of storage
and rested in the shop by the outer wall ) after he had told Barrentine to move it,
to be careful . But this was not mentioned to Barrentine as the reason for his
discharge on July 16 . And Hawkins never told Parsons that Barrentine should be
discharged for having broken the panel . In fact , Hawkins first told Parsons to give
any reason he wanted to, and when Parsons. insisted that Hawkins decide on a reason
Hawkins told Parsons to tell Barrentine he was laid off for lack of work . Parsons
was aware of the fact that the switch panel had been broken but that he was not
aware of when or by whom it was broken . According to Parsons , Hawkins had
told him that he thought the two men who had moved it (from storage ) had broken
it. Gilpatrick and Carl Barrentine had moved it out of storage , with Gilpatrick
operating the fork lift on which it was moved . Foreman Hammock , a director of
the Respondent , testified that he saw Carl Barrentine back a fork lift into the
electric panel , that Hawkins asked him who had done it, and that he had told him
that Carl Barrentine had done it. Hammock , however , had not seen fit either to
reprimand Barrentine nor, before Hawkins asked , to report the incident to Hawkins.
Barrentine , himself, had no recollection of being on the fork lift on July 16, his
last day. He testified that the panel appeared to be in poor condition when it
was removed from storage . Hawkins testified that he saw Barrentine back into the
switch panel but that "whether it was busted at that time , I couldn 't tell." The
evidence does not satisfy me that either Hawkins or Hammock saw any great
damage done by Barrentine and on all the evidence I am convinced that Carl Barren-
tine was not discharged on July 16 , 1957 , because of any damage he might have
earlier caused to the switch panel.
Hawkins testified ' that he had had reports from Hammock and Parsons critical of
the work of Wayne Barrentine , Carl's son, and of Donald H. Pugh , the son of
Donald M . Pugh . Hammock was reported to have expressed a poor opinion of the
two, but Hammock does not appear to have influenced Hawkins' decision to dis-
charge them. The younger Pugh had worked for Hammock in March 1957, when
the employee who had been working in the silk screening department, James Tacato,
was away . When Tacato returned in the last part of March , Hammock told Hawkins
that Pugh was too slow and was not efficient . Thereafter young Pugh worked in
Parsons' shop , occasionally helping out in the silk screen department when he was
needed . Hawkins testified that when young Pugh was disturbed by the fact that
Hammock did-not want him in his department , he spoke to Pugh and said , "Well,
Don, don't feel badly about the thing . None of us can do everything. You do
what you are told to do around here , do it the best you can , and you will get along
all right." Young Pugh apparently was deemed an acceptable employee from that
time until the day of his discharge about 4 months later . On Wednesday , July 17,
1957 , the day of their termination , no incident occurred which precipitated the
termination of the younger Pugh and Barrentine . - -When asked whether he dis-
charged the four employees for incompetence , Hawkins avoided a direct answer.
Rather, he answered , "Well, basically they didn't 'fit into ' my program any more."
On all the evidence , I conclude that incompetence was not the true reason, for
the discharges.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unless it was true that the Respondent ran out of work, no reason appears for not
keeping the four employees at least to the end of the week instead of precipitately
terminating them in the middle of the week. But the record is replete with evidence
that the Respondent had not run out of work and in fact had to limit its production
thereafter to the big State order in an attempt (unsuccessful as it developed) to keep
up with delivery dates. That lack of work was not the true cause for the termination
of the four employees is made out not only by Parsons' testimony of his conversations
with Hawkins before the discharges but additionally by Parsons' testimony that,
after the Board investigation commenced, he had a conversation in the shop with
Hawkins in which Parsons commented that the layoff had caused trouble with the
Board. He quoted Hawkins as saying, "After all, we did fire them because of lack
of work, didn't we?" When Parsons said, "No. . . . We have got lots of work,"
Hawkins replied, according to Parsons' credited testimony, "Well, . we fired them
for lack of work for them specifically. . . I had no more work for those people,
as individuals." This is a form of rationalization which does not conceal the true
purpose of-the discharges. On all the evidence I conclude and find that lack of work
was not the reason for the four discharges.17
Another explanation offered by Hawkins for the discharges was that the Respond-
ent had "come up to a point in the processing of that order [the State order] where
we didn't need but about four men to handle it in the department, let's say, in where
the Pughs and the Barrentines were. . . . And we actually didn't need the four
men that we let go." This, in itself, is a contradiction. Need for only 4 men in the
department could account for laying off 2 of the 4, but the apparent contradiction was
probably intended to be explained by Hawkins' testimony that "I was confronted with
the peculiar situation of having two sons and two fathers in my shop. If I let one
go, the other was disgruntled." To bear out his assertion that the discharge of a
father would make the son disgruntled, Hawkins testified that on the day after the
elder Barrentine was laid off "they were . . . the son and the two Pughs were very
surly in their attitude, and in making this other [?] piece of equipment, or welding
job that he [to whom the pronoun applied is not clear] was to do, he made a botch
of that. And I just felt that this is it, it was time to get rid of them."
For a number of reasons I do not credit this version of the discharges. In the first
place, on July 17, the very day that the younger Barrentine and the two Pughs were
laid off, Hawkins had spoken to the elder Pugh about installing a door in the silk-
screening department as previously related. Hawkins did not advert to this at all
in his testimony. If that was a job that needed to be done, there was work for the
elder Pugh. Furthermore, even aside from the testimony of witnesses to the ample-
ness of work, there appears to have been work for him on production, for Parsons
apparently kept him there for the rest of the day, giving him no opportunity to start
work on the door. In the second place, Hawkins did not explain how, if the dis-
charge of a father would make a son disgruntled, the discharge of the elder Barren-
tine would have affected the two Pughs. Yet, he portrays them as surly on the day
after the elder Barrentine was terminated. That they were surly I do not believe-
certainly not if they were supposed to have been so made by the layoff of the elder
Barrentine. If the Respondent needed only 4 men-in the department, he would have
had them in the 2 Pughs, Grziwok, and Gilpatrick, This would have meant releasing
only the two-Barrentines.
The younger Pugh had, since Tacato, Hammock' s regular assistant , returned in
April 1957, done work for Hammock off and on when Hammock needed additional
help, and Tacato was away during the first 3 weeks of July and was still away when
the discharges took place.18 Although the younger Pugh may not have been the
equal of a journeyman painter or sheet metal worker, he obviously had more
qualifications than an inexperienced man hired through the Salvation Army. To
terminate him, therefore, appears to have been an improvident move from the stand-
point of maintaining production.
Hawkins' testimony regarding a botch job that "he" (perhaps referring to the
younger Barrentine) did on July 17 was vague and unconvincing . The Respondent
made no effort to question Parsons, when he was on the witness stand, about a botch
job done on July 17. Parsons was asked about the electric panel and admitted that
he had heard that it had been damaged although he was not certain when and he
would not fix the date of the damage as July 16, 1957. As Parsons did not appear
17 Vernon T. Mercer, 119 NLRB 673.
18 Tacato returned to work during the first week of the strike, July 21 to 26 . But the
record does not disclose the number of days he worked that week. He was absent then
until the week ending August 9. The .record does not indicate on what dates he worked
during that week either.
HAWKINS-HAWKINS, INC. 751
to be biased in favor of the dischargees, I consider the Respondent's failure to ques-
tion Parsons about any poor work done on July 17 to be an indication that Hawkins
had made no mention of it before he testified as above quoted. And if there were
any truth in the assertion at all, why should Hawkins not have told Parsons to dis-
charge the men for doing a botch job instead of for lack of work? Even if, in the
presence of the dischargees, Hawkins, personally, might have given them a reason
for discharge which would not create hard feelings, that is no reason for his telling
Parsons a false reason if his reason really had been inefficiency or botch work. But
Hawkins' directions to Parsons to give them any reason he wanted to for laying them
off is a clear indication that Hawkins did not have specific deficiencies in mind for
terminating their employment at that time but brought forward odds and ends of
reasons later thought up for his testimony.
Because of the weak and shifting excuses given at the hearing for the discharges,
the fact that the dischargees themselves were not warned of possible discharge, were
not given any other reason than lack of work as the cause of their termination, and
were terminated suddenly in midweek when there was still plenty of work, in addition
to the evidence of the Respondent's, antipathy for the Union and Parsons' testimony
revealing the true reason for the discharges, I conclude and find that the four men
were discharged because of their organization of the Union. That Hawkins did not
have specific information concerning the names of those who had organized the Union
is immaterial .19 He made a calculated guess that the 4 who were selected for dis-
charge were the most likely ones to want a union,20 and he decided that he could
best counteract the Union's efforts to represent the Respondent's employees by
discharging those 4.
At the hearing, the Respondent's counsel questioned the four dischargees on cross-
examination about the extent of their union activities, eliciting the response that
they had done little or nothing except sign authorization cards, and he argued that,
as the complaint alleged the discharges to be because of union activities and not be-
cause of union membership, the evidence failed to support the complaint. How-
ever, the signing of authorization cards by the employees was in furtherance of con-
certed activities, and I find that this sufficiently supports the complaint. Upon the
entire record, therefore, I find that, by discharging Carl Barrentine, Wayne Barren-
tine, Donald H. Pugh, and Donald M. Pugh, the Respondent has discriminated in
regard to their hire and tenure of employment and has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to, and have led to, labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Because I have found that the Respondent discharged Carl Barrentine, Wayne
Barrentine, Donald H. Pugh, and Donald M. Pugh because of their union activities,
I shall recommend that the Respondent offer to the aforenamed employees im-
mediate and full reinstatement to their former or substantially equivalent positions 21
without prejudice to their seniority or other rights and privileges and make them
whole for any loss suffered by them by reason of the Respondent's discrimination
against them, by paying to each a sum of money equivalent to that which he would
normally have earned had he remained in the Respondent's employ between the date
of his discharge as hereinbefore found and the effective date of the Respondent's offer
19 Holler Craft Plastic Products, Inc., 114 NLRB 990.
m Hawkins, in part, substantiated Parsons' testimony concerning Hawkins' decision
that those 4 were the most likely ones to join a union and that Gilpatrick and Grziwok
were not so likely, by testifying that the foremen reported to him that the latter 2 had
denied that they had joined the Union and that he was surprised to learn, on July 20,
when he called at Gilpatrick's home, that Gilpatrick had joined the Union.
a For definition of "substantially equivalent position" see Chase National Bank of the
City o f New York, San Juan , Puerto Rico , Branch, 65 NLRB 827.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reinstate him, less his net earnings 22 during said period , computing the amount to
be paid by the Respondent in the manner heretofore established by the Board.23
Since the unfair labor practices herein found to have been committed by the
Respondent disclose a willful opposition to the fundamental purposes of the Act and
evidence an intent to interfere generally with the rights of employees which are
guaranteed by the Act, the preventive purposes of the Act will be thwarted unless
the remedial order is coextensive with the threat. Therefore , in order to make more
effective the interdependent guarantees of Section 7 of the Act and,to prevent a,re-
currence of unfair labor practices which burden and obstruct commerce , I'shall
recommend that the Respondent shall cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
On the basis of the above findings of fact , and upon the entire record in the
case, I make the following: ,
CONCLUSIONS OF LAW
1. The Respondent is 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 interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Carl Bar-
rentine , Wayne Barrentine , Donald H . Pugh, and Donald M. Pugh, thereby dis-
couraging membership in a labor organization , the Respondent has engaged .in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (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.
[Recommendations omitted from publication.]
^ Crossett Lumber Company , 8 NLRB 440, 497 ; Republic Steel Corporation Y. N. L. R. B.,
311 U. S. 7.
23 F. W. Woolworth Company, 90 NLRB 289.
The Glidden Company and C. O. Waters, Petitioner and Industrial
Union of Marine & Shipbuilding Workers of America, AFL-
CIO, and its Local Union 32. Case No. 12-RD-13. August 29,
1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Board Decision and Direction of Election,' an
election by secret ballot was conducted on April 17, 1958, under the
direction and supervision of the Regional Director for the Twelfth
Region of the National Labor Relations Board among the 'employees
in the unit therein, found appropriate. Following the election, the
parties were furnished a tally of ballots which showed that of
approximately 94 eligible voters,, 41 cast ballots .for the- Union, 48
cast ballots against, and 8 ballots were challenged.
On April 24, 1958, the Union filed objections to conduct affecting
the result of the election. After investigation, the Regional Director
' Unpublished.
121 NLRB No. 87.