Hildebrand Co.

National Labor Relations Board - Board Decisions

Aug 3, 1972

198 N.L.R.B. 674 (N.L.R.B. 1972)

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hildebrand Company and General Drivers, Ware-
housemen and Helpers , Local No. 89, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases
9-CA-6189 and 9-CA-6306
August 3, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 23, 1972, Trial Examiner Ivar H.
Peterson issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed exceptions, a supporting brief, and an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions only to the extent
consistent with the following:
1. The Trial Examiner found that Respondent
terminated employee Shelby Hayes in violation of
Section 8(a)(3) and (1) of the Act. We do not agree.
Respondent hired Hayes on February 22, 1971, as
a forklift operator. Hayes had a speech defect which
made it difficult to understand him. When he started
working for Respondent he was assigned to the dock
under Supervisor Fields. The latter complained to
President Hildebrand that fellow employees could
not understand Hayes. Two days later, at the request
of Fields and Warehouse Superintendent Mayes,
Hildebrand transferred Hayes to working with
stockman Zimmerman in warehouse 3. Zimmerman
also, according to Hildebrand, complained about
inability to understand Hayes. In April and May,
Respondent suffered a sharp decline in business
which resulted in work running out in warehouses 2
and 3. On April 2, Respondent laid off two office
employees, an assistant buyer, and an assistant
bookkeeper, layoffs which are not claimed to have
been discriminatory. On April 2, Respondent also
terminated Hayes. In a letter of that date to Hayes,
Respondent stated:
Due to a decline in business at this time, it is
necessary for us to release a few of our employees
both in our office and warehouse . We regret
therefore to advise that your employment is
terminated at this time.
You were advised [at the time of transfer to the
warehouse ] . . . that you would be retained as
long as there was work for you to do since the job
was an extra position being made up for your
retention.
Unfortunately, the work we now have must be
distributed with our older employees. We now
have no choice except for a limited reduction of
personnel.
Respondent laid off one other warehouse employee
on April 2, and two others on April 16 . The Trial
Examiner found that these layoffs were not discrimi-
natory, but were brought about by a marked decline
in business . All three of these employees had
seniority over Hayes.
Hayes' sole union activity consisted in his having
signed a union card and having worn a union button.
There is no evidence that Respondent was aware of
Hayes' having signed the card.
The Trial Examiner concluded that Respondent
had discriminatorily discharged Hayes upon the
basis that Respondent had taken the position that
Hayes was discharged "solely" because of his
communication problem and the Trial Examiner had
formed the opinion that none of the parties at the
hearing had any difficulty understanding him "al-
though , it was evident , that his speech was not
altogether normal ." Respondent denies that, as
stated by the Trial Examiner , it asserted that Hayes
was terminated "solely" because of his speech defect.
On the contrary , it contends that Hayes was laid off
both because of his speech impairment and lack of
work.
We conclude that there is not a preponderance of
evidence to establish that Respondent terminated
Hayes for discriminatory reasons. We note first that
the Trial Examiner credited Respondent 's evidence
that there was a marked decline in incoming business
beginning in April, that several nonunit employees
were laid off at the same time as Hayes , and that
three other warehouse employees who were senior to
Hayes were laid off for economic reasons during
April, one of these on the very day that Hayes was
terminated . Secondly , the record does not support
the Trial Examiner's statement that Respondent
contended Hayes was discharged "solely" because of
his speech communication difficulty .' Respondent's
1 Respondent 's counsel made the following statement explaining the at a time when other people were being laid off , but he was laid off
termination of Hayes mainly because-and not recalled-because of his speech impediment
He was terminated at a time when business was slack Mr Hildebrand Now that very simply is the Company's position. Mr. Hildebrand did
didn't want to hurt the man's feelings He laid him off because of an not want to hurt the man's feelings.
extreme difficulty we had in communicating with him. He laid him off
198 NLRB No. 96
HILDEBRAND COMPANY 675
termination letter to Hayes on April 2 explicitly
stated that the termination was caused by a decline
in business which, as the Trial Examiner found, was
a fact. Finally, Hayes' union activities were minimal.
It is difficult to perceive in these circumstances why
Respondent should have singled him out for a
discriminatory discharge. Inasmuch as we have
concluded that Respondent did not discharge Hayes
for discriminatory reasons, we shall dismiss this
allegation of the complaint.
2. The Trial Examiner found that Respondent
had violated Section 8(a)(1) of the Act by President
Hildebrand's statement to employee Kress that there
would be no merit increases during the pendency of
the Union's representation petition. We do not adopt
this finding.
In March 1971, employee Kress, who had then
been employed only for about 5 weeks, asked
President Hildebrand for a merit wage increase.
Hildebrand replied, according to Kress, that at one
time Respondent had given merit wage increases, but
had discontinued the practice because it created
animosity among the employees; that Kress would
receive automatic wage increases as they became
due, but that Kress was not then entitled to such
increase; and that as far as he knew "the wages were
frozen as far as merit increases were concerned by
the NLRB during a Union petition."
The Trial Examiner found that in withholding a
customary wage increase for the reason that the
Union was engaged in organizational activity and
implying that the Union was responsible therefor,
Respondent violated Section 8(a)(1). As the above
recital of what Hildebrand told Kress makes clear,
Respondent did not withhold any customary wage
increase from Kress in March 1971. Respondent had
abandoned the practice of making merit increases
before the Union's organizational efforts began. As
for the substituted automatic wage increases, Hildeb-
rand told Kress that he would receive them when he
became entitled to them. (There is no contention that
any automatic wage increase was withheld from
Kress). In the circumstances, Hildebrand's quoted
statement that wages were frozen during the penden-
cy of the Union's representation petition was a
correct statement of the law. Accordingly, we find
that Hildebrand's statement to Kress was not
unlawful.
3. The Trial Examiner found that President
Hildebrand threatened an employee with surveil-
lance of his union activities, thereby violating Section
8(a)(1) of the Act. We do not agree with this finding.
Employee Proctor was laid off for economic
reasons on April 16 and recalled to work on June 1.
On his recall, President Hildebrand called him into
his office together with his foreman, Warren Hile,
and read to him the following message:
When you were here last, we were advised by
some of the employees that you were soliciting
cards and discussing union matters during work-
ing hours. You were told during a warehouse
meeting that union problems could be discussed
at any time except during working hours. Since
you did not heed this policy, I must tell you that
we are glad to have you back on the job but must
advise that if you work on union matters during
working hours when you are paid to do work for
the company, that we will consider this cause for
discharge.
According to Proctor's credited testimony, Hildeb-
rand also told him that he would be under surveil-
lance. The Trial Examiner found that this surveil-
lance statement was unlawful.
At the hearing, the General Counsel amended the
complaint to allege that the above June 1 statement
of President Hildebrand to employee Proctor con-
tained an unduly broad no-solicitation rule since
there was no explanation of what constitutes "work-
ing hours" and that Respondent thereby violated
Section 8(a)(1). The Trial Examiner failed to pass on
this amended allegation of the complaint.
The statement read to Proctor referred to a
warehouse meeting at which the employees were told
that they could discuss union problems at any time
except during working hours. At the warehouse
meeting mentioned , which Proctor attended, Presi-
dent Hildebrand specifically told the employees that
they could discuss union business "during breaks,
lunch time and before and after work but not during
working hours." In view of the specific referral to the
warehouse meeting in the June 1 statement, we
believe that the latter must be read as having
incorporated therein the earlier statement that
employees could discuss the Union during nonwork-
time and so read the June 1 statement is lawful. If the
statement was, as we have found , lawful , there was
nothing unlawful in Respondent 's further statement
that it would police the rule against violations. In
context , this is all the meaning we can ascribe to the
surveillance statement of President Hildebrand.
Accordingly, we find that neither of the June 1
statements violated Section 8(a)(1) of the Act.
As we have reversed the Trial Examiner's above
findings of Section 8(a)(1) and (3) violations , and the
Trial Examiner recommended dismissal of the other
allegations of the complaint, which we adopt, we
shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: This case was tried
at Louisville, Kentucky, on August 24 through 27, 1971,
and at Jeffersonville, Indiana, on September 21. The
charge in Case 9-CA-6189 was filed May 7 and the charge
in Case 9-CA-6306 was filed on June 6. The Regional
Director for Region 9 issued a complaint in the first case
on May 28; a complaint was issued in the second case on
July 19, together with an order consolidating the cases and
a notice of hearing. The Respondent filed answers to the
complaints. Breifly stated, the case involves the following
issues: Whether the Respondent engaged in conduct
violative of Section 8(a)(1) of'the Act in various respects,
and whether it laid off employees, discharged employees,
reduced the pay of an employee and suspended another
employee all because of their activities on behalf of
General Drivers, Warehousemen and Helpers, Local No.
89, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein referred to
as Local 89 or the Union.
Upon the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the able briefs filed by counsel for the General Counsel
and counsel for the Respondent on November 19, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent, at its Louisville, Kentucky, location is
engaged in the wholesale sale of general merchandise. It
employs about 75 employees. The Respondent admits and
I find that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the volume of its
business meets the Board's jurisdictional standards. I
further find that the Umon is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
There have been several attempts in the past to organize
the Respondent's warehouse employees. In 1968 the Union
filed a petition for an election, but an election was never
held. In February of 1971, the Union began another
organizing campaign and on March 9 demanded that the
1 At the hearing, counsel for the Respondent moved to revoke the
subpena calling for the production of its profit and loss statements. I demed
the motion , the Respondent refused to permit these to be received in
evidence , and thereafter the Board sustained my action and they were
submitted
2 Among the cards were those signed by Elery Stroup, Donald Kress,
Shelby Hayes , Melvin Osborne , Lynn Oswalt, Harold Farrow, and Larry
Proctor
3 Riggs did not testify McCracken had sent a letter demanding
Respondent recognize it. On March 29 Leonard McCrack-
en and Carleton Riggs, both business agents of the Union,
met with Sidney Hildebrand and Lee Hildebrand, presi-
dent and secretary-treasurer, respectively, of the Respon-
dent. At the outset of the meeting McCracken, so he
testified, placed 13 union membership cards on the desk
around which the four men were sitting. The meeting
lasted approximately a half hour and during that entire
time the cards were in full view.2 Although there is
testimony from witnesses for the General Counsel that the
two Hildebrands looked at the cards, they, vigorously
denied so doing.
About the last part of March or the first part of April
several employees began to wear union buttons at work.
The Respondent immediately reduced the wages of
Osborne and on April 2 laid off Oswalt and discharged
Hayes. On April 8 Kress was terminated and Proctor and
Stroup were laid off on April 16. Farrow was suspended on
June 7 for a week.
At the opening of the hearing, counsel for the General
Counsel amended the complaint to reflect that Proctor was
offered reinstatement on May 28 to be effective June 1 and
that he reported for work but declined reinstatement. In
addition, Stroup was offered reinstatement by letter dated
May 28, to be effective June 3; he accepted the offer and
was working at the time of the hearing. In addition, the
complaint was amended to reflect that about the last of
March, Sidney Hildebrand violated Section 8(a)(1) in
telling an employee that there would be no merit increases
because the Union was trying to organize; and that on or
about June 1 Sidney Hildebrand told an employee that his
activities on behalf of the Union were under surveillance
and on the same date promulgated and adopted an
unlawful no-solicitation rule for the purpose of discourag-
ing employees from engaging in union activity.
B. Alleged Interference, Restraint, and Coercion
McCracken, on behalf of the Union, initiated an
organizational campaign among the Respondent's employ-
ees during the latter part of February and early March. On
March 29 he and another business agent of the Union,
Riggs, called on Sidney Hildebrand. He laid some union
cards on Hildebrand's desk and spread them out, so he
testified, where they remained for the approximate 30
minutes that the interview lasted. McCracken testified that
he and Hildebrand rose from their chairs and looked at the
cards. However, both Sidney and Lee Hildebrand, who is
secretary-treasurer and merchandise manager , said that
McCracken did spread the cards on the desk but that both
refused to look at them and Sidney stated that he would
not recognize the Union until it had been selected in an
election.3
With respect to the allegation that the Respondent told
recognition on March 8 to which the Respondent replied on March 10
pointing out that the bargaining unit had not been specified A second letter
was sent by the Union setting forth the bargaining unit In the conversation
between the business agents and the Hildebrands, Sidney Hildebrand stated
that Harry Mayes, the former general superintendent, had in some way
been involved in obtaining the signed union cards Counsel for the
Respondent, in a letter of March 31 responding to the visit by the business
agents to the Respondent on March 29, stated that it was the Respondent's
position "that any authorization cards which your Union may have
HILDEBRAND COMPANY
an employee that there would be no merit increases
because the Union was trying to organize, the testimony is
largely undisputed. Kress testified that on one occasion he
asked for an increase in wages and that Sidney Hildebrand
told him that because of the union activity the Respondent
was freezing all wages and benefits. Hildebrand testified
that this meeting with Kress occurred about the middle of
March and that he told Kress "that as far as I knew the
wages were frozen as far as meat increases were concerned
by the NLRB during a union petition." The Respondent's
policy is to grant periodic wage increases automatically
after specified time periods. In this regard, counsel for the
General Counsel contends that it is "well established
Board law that employers, during the course of an
organizing campaign, must give employees the wage
increases that would ordinarily be given." In support he
cites Sylgab Steel & Wire Corp., 162 NLRB 303, and Reno's
Horseshoe Club, Inc., 162 NLRB 268.
On June 1 Sidney Hildebrand read a message to Proctor,
in the presence of Warren Hile, which stated in part as
follows:
When you were here last, we were advised by some
of the employees that you were soliciting cards and
discussing union matters during working hours. You
were told during a warehouse meeting that union
problems could be discussed at any time except during
working hours. Since you did not heed this policy, I
must tell you that we are glad to have you back on the
job but must advise that if you work on union matters
during working hours when you are paid to do work for
the company, that we will consider this cause for
discharge.
Proctor testified that the day he returned to work he was
called into Sidney's office along with Hile, that Sidney read
from a piece of paper and in substance stated that if
Proctor were to solicit union members or work on union
business on company time he would be terminated. He
further stated that Proctor would be under surveillance,
and that he then worked 2 hours and punched out at noon
and never returned to work.
The Respondent first learned of the organizing campaign
when an employee telephoned Sidney Hildebrand at home
the night of March 8. According to the Respondent, this
employee (who was named but did not testify) stated that
Warehouse Superintendent Mayes had forced him to sign
an authorization card by threatening that if he did not he
would lose his job. The following morning Hildebrand
made a talk to the warehouse employees, speaking from
notes he had prepared. Following the talk, Hildebrand, at
the suggestion of counsel, made a memorandum of what he
had said. Witnesses who testified regarding this talk in
obtained from Company employees, regardless of when they were signed,
are ineradicably tainted by the unlawful and improper supervisory
intimidation, coercion and threats of former Company Warehouse
Superintendent Harry Mayes and that therefore any such cards are invalid
for any purpose It is the Company's further position that the effects of
Mayes' unlawful and improper activities and statements had not been and
cannot be eradicated, both because of his former position with the
Company and because of his threats and violence on behalf of your Union "
Mayes was not a witness
" In the course of his talk Hildebrand stated that his attention had been
called to the fact that "an effort to organize this firm is being made and that
union cards have been passed around for signature ", that employees had "a
677
substance agreed that the memorandum substantially sets
forth the content of his talk?
C. The Layoffs of Oswalt, Proctor, and Stroup
Lynn Oswalt had worked for the Respondent for 2
months in 1970 and then returned the following February
8. He was laid off on April 2. He worked as a packer in
warehouse 4, part-time, inasmuch as he was a student at
the Southern Theological Baptist Senunary, under the
supervision of Harry Mayes and also James Hornback. He
signed a union card on March 11 or 12, attended some
union meetings, and wore a union button about the first of
April. Noticing the button, Hornback commented "that he
saw that I had one too."
On March 26 Oswalt was asked by Sidney Hildebrand to
come to his office. According to Oswalt, Hildebrand stated
that he intended to give Oswalt a 10-cent raise, which was
customary for student help after 7 or 8 weeks of
employment. Hildebrand stated that since Oswalt was a
part-time employee and had not been present at the
meeting where Hildebrand had discussed the Umon, he
would tell Oswalt that he was opposed to having a umon in
the business. Oswalt asked Hildebrand why he was
opposed to a union and stated that he felt the men might
well desire union representation. Hildebrand replied that
he felt that he could provide the men with the benefits that
a union might obtain for them. Oswalt responded by
stating that the Respondent had not provided two matters
that the employees desired, namely, higher pay and job
security. To this, Hildebrand stated that he did not feel
that a union would bring higher pay to the employees and,
concerning job security, said that no layoffs were anticipat-
ed in the near future. On April 2 Hildebrand again called
Oswalt to his office and stated that work had slacked off to
the point where he had to let Oswalt go. According to
Oswalt, three employees, Robert Heltsley, John Campbell,
and William Paine, who did work similar to that which
Oswalt had performed, were junior to him and were not
laid off. On May 20 Oswalt was offered reemployment. In
response, Oswalt stated that he would be able to return for
only a week since he had another job in Louisiana
beginning June 1.
Larry Proctor was employed in May 1970 and was laid
off on April 16, 1971. He worked as an order filler but also
served as a stockman and packer. According to Proctor,
both Hildebrand and Mayes had told him sometime in
February that he was being groomed for a supervisory
position.
Proctor signed a union card sometime in February,
attended Union meetings and also wore a union button.
perfect right to sign a union card without objection from the company if he
feels that a union will be to his advantage", that no one "has the right to
coerce or threaten or force an employee to sign against his will", that union
business may be conducted "during breaks , lunch time and before and after
work but not during working hours", that this effort was the fourth effort
for organization", that the company had "instituted the benefits that were
in this process prior to the organizational effort that were frozen", that he
wanted the employees to know "that the company can live with the union
but the question is, can you", and that the Respondent felt "that a union
will cause a rift between management and union personnel that may be
unfortunate "
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About the first of April Hildebrand came to Foreman
Homback's desk in Proctor's presence. Proctor was
wearing his union button and testified that Hildebrand
said to Hornback, "Jim, I understand some of the men are
wearing Union buttons" and then walked over to Proctor
and asked him if the button he was wearing was one of
them.
Quite frequently Proctor ate lunch with two other
employees, Melvin Osborne and Harold Farrow; occasion-
ally Hornback joined them. According to Proctor, on one
such occasion Hornback told him that he (Proctor) had
better watch out because "Sidney has a list of names" and
further related that Hilderbrand had called him (Horn-
back) into the office on the day that Proctor first wore his
button and that Hildebrand said he had some 8 to 11
names on the list and that Proctor and another employee,
George Duggins, were at the top of the list. About a week
after receiving this information from Hornback, Proctor
was called into the office by Hildebrand and told that he
was being laid off because "business has been bad."
Hildebrand stated that Proctor could expect to be called
back in June. As related above, Proctor returned to work
on June 1 and was then told that if he were seen soliciting
for the Union or working on union business on company
time he would be terminated. In addition, according to
Proctor, Hildebrand stated that he would be under
surveillance . He then worked about 2 hours, punched out,
and never returned.
Elery Stroup had worked for the Respondent something
over 2 years as a packer and stockman prior to his being
laid off on April 16. He signed a union card on March 29
and first wore a union button on April 1. On that day
Hornback came over to him and, referring to the union
button, stated "you surprised the old man. You have hurt
him because he didn't think you would be in the Union."
On April 5, according to Stroup, he had a conversation
with Sidney Hildebrand who expressed surprise at his
having joined the Union, commenting that he thought
Stroup "liked it there and was happy there and why would
I change over." Stroup answered that he liked his job and
had not changed over, but had joined the Union in order to
obtain $500 additional insurance for his wife because at his
age he could not purchase insurance.
On the day of his layoff Hildebrand told him that
business was bad and that the Respondent had about 8
people "running around" the warehouse trying to look
busy. Stroup was called back on June 3 and was working at
the time of the hearing.
Stroup had worked in several warehouses and about 2
weeks before his layoff he was sent back to warehouse 728,
and at that time noticed that there was some decline in the
number of orders being filled. He was also aware of the
fact that, when returning to warehouse 728, four employees
had been laid off because of a slack in business. According
to Stroup, he had more seniority than Robert Auker , Paine,
Heltsley, Campbell, and George Duggins. He stated that
Heltsley, Paine , and Campbell did not wear union buttons
and had not joined the Union.
Sidney Hildebrand testified that an average of 25,000
orders are filled each month. Documentary evidence
concerning this reveals that the number of orders filled in
the months of February through July were as follows:
February 21,322
March 28,673
April 16,983
May 18,396
June 25,000
July 19,599
Hildebrand was asked to produce records to support his
statement that business was worse in 1971 than it had been
for years, but in response stated that those records had
been destroyed. He acknowledged that the number of
employees in the office is a fair indicator of the general
level of business, and testified that the number of office
employees was as great in 1971 as it had been the previous
year.
Hornback admitted that he often ate lunch with Farrow
and Proctor, but denied that he had said anything
concerning a list of employees maintained by Hildebrand.
D. Suspension of Farrow
Harold Farrow had been employed since April 1967 and
at the time he testified was working as an order filler. He
signed a union card in March and was the first employee to
contact the Union. He spoke to employees in favor of the
Union and attempted to have them sign union cards. He
also wore a Union badge.
On May 31, a holiday, Farrow's 6-year-old brother-in-
law died. After receiving the news, Farrow telephoned the
home of Elmer Hennessey, his immediate supervisor. He
did not speak to Mr. Hennessey but talked to his son Don,
also an employee, and testified that he asked Don to relay
a message to his father "and tell him I would be gone until
Thursday or Friday of that week." He also telephoned
Melvin Osborne, with whom he had been riding to work,
and told him that he would be off until Thursday or
Friday. The journey from Farrow's home to the funeral site
was about 200 miles. Farrow and his wife left for the
funeral the morning of June 1. The funeral was Thursday
afternoon, June 3, and they returned the afternoon of
Friday, June 4.
When Farrow reported for work Monday, June 7, he
found that his timecard was not in the rack. He obtained a
substitute card from the timekeeper and punched in. Later,
Vice President Ralph Voss spoke to him and stated that he
thought that Sidney Hildebrand wished to see him. When
he saw Hildebrand the latter "offered his condolences and
then he said that I hadn't lived up to my obligations to the
Company." Farrow asked him to explain and thereupon
Hildebrand stated that he had not obtained the proper
permission to be off and further related that Hennessey
had told him (Hildebrand) that Farrow would be in on
Tuesday, June 1. Farrow replied that there must have been
some misunderstanding, whereupon Hildebrand called in
HILDEBRAND COMPANY
Hennessey and asked him if he had not stated that Farrow
would be in on Tuesday. Hennessey stated that he could
have misunderstood Farrow. Hildebrand then said that he
was going to give Farrow a temporary layoff for probably
a week as discipline.5
E. The Discharge of Shelby Hayes
Hayes was employed by the Respondent on February 27
as a receiving clerk on the dock . About March 4 he was
transferred to the warehouse as a stockman and on April 2
he was discharged . Hayes signed a union card on March 11
and during the last part of March began wearing a union
button on his cap.
F. Concluding Findings
With respect to the conduct of the Respondent in
withholding the customary wage increase for the reason
that the Union was engaged in organizational activity, the
law seems clear that in impliedly stating that the Union
was responsible for the failure to grant increases is violative
of Section 8(a)(1) of the Act. Thus, in Reno's Horseshoe
Club, Inc., supra, the Board adopted a finding by the Trial
Examiner that "by attempting to convey to the employees
the impression that the union was responsible for the
failure of the Respondent to grant increases in wages and
other benefits ...... the Respondent in that case violated
Section 8(a)(1) of the Act. See also Hermann Equipment
Manufacturing Company, Inc., 156 NLRB 716, and Ameri-
can Freightways Co., Inc., 124 NLRB 146, 147. Concerning
the allegation that the Respondent threatened Proctor with
surveillance of his union activities, there is a conflict in the
testimony. It should, in this connection, be observed that
Proctor had been laid off and had been recalled to work.
He did return on the day appointed and it was then that
the conversation in question took place with Hildebrand.
Following the conversation, and apparently because of
what was told him, he left his job. If, in fact, the
conversation contained only what appears in the text of
Hildebrand's memorandum (Resp. Exh. 9) it would appear
that there would be little or no reason for Proctor to leave
the plant. However, if Hildebrand stated that Proctor
would be under surveillance, the reason for his sudden
departure appears to be more understandable. On balance,
I am of the opinion that Proctor would not have left the
plant if the conversation was as represented in the
memorandum written by Hildebrand. Accordingly, I find
that Hildebrand did say that Proctor's activities would be
under surveillance. This, I find, constitutes a violation of
Section 8(a)(1) of the Act.
Concerning the layoff of Oswalt, Proctor, and Stroup, it
is the Respondent's position that the customary seasonal
decline in business that occurs in April and May was, in
1971, the worst in 15 years, and resulted in work running
out in warehouses 2 and 3 (the only ones here involved). A
compilation from the daily work sheets kept by the order
fillers was prepared by the Respondent for the months of
February through July, inclusive, and on the following
5 The Respondent's published rules provided that in the event "it is
necessary to take time off , request should be made in advance with an
explanation for the request (Illness excepted) If illness or an
679
table the number of warehouse workers, by classifications,
is stated.
Week
Feb. 1
8
15
22
Mar. 1
8
15
22
29
Apr. 5
12
19
26
May 3
10
17
24
June 1
7
14
21
28
July 12
19
26
Warehouse Employees
February through July 1971
Order
Fillers Packers
Stock-
men
Items
Filled*
4 4 3 5504
4 4 3 4991
4 4 3 5584
4 4 4 5243
4 5 4 6046
4 5 4 6176
4 5 4 5823
5 5 4 6195
6 5 5 6607
4 2 2 3219
2 2 2 2758
3 2 2 3476
4 3 2 5356
4 3 4 4803
4 3 4 4528
4 3 4 4503
4 3 4 4562
5 3 4 3718
5 3 5 5344
5 3 5 5302
5 4 5 6569
5 4 5 4802
5 4 5 6092
5 4 5 6826
5 4 5 5946
*This reflects the separate kinds of items
filled, regardless of the quantity of each
particular item.
The Respondent filled 28,673 items in March whereas in
April it filled only 16,983 items in these two warehouses, or
a decline of some 40 percent. During this time some of the
warehouse employees were performing miscellaneous work
other than their customary classification . On April 2, the
Respondent laid off two office employees, an assistant
buyer and an assistant bookkeeper. Business in May was
only slightly better than in April, the Respondent filling
18,396 items.
As we have seen , Oswalt was a part-time employee and
had been hired on a temporary basis. When Proctor and
Stroup were laid off on April 16, a Friday, they were told
that it was because of a drastic decline in business, but that
they would be recalled when business picked up, probably
in June when the spring show opened. Both were recalled.
Oswalt was offered reemployment but he declined.
Witnesses for the General Counsel testified that a
number of employees, whom they claimed had less
seniority than those terminated or laid off, were retained.
emergency should occur , be sure to call in or have someone else call in to
explain your absence and when you expect to return "
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees named as falling in this category were Warfield,
Auker, Frermann [incorrectly spelled Furman in the
transcript], Heltsley, Paine, Duggins, Campbell, and Hile.
Warfield, a packer, had worked for the Company about 11
years except for a 2-month penod when he was employed
elsewhere. When he returned, he was given the top wage
scale for his classification and credit under the Respon-
dent's pension plan for his entire period of service. Auker,
an order filler, was hired shortly after Stroup. The latter
admittedly had previously demonstrated that he could not
fill orders and, in consequence, the Respondent maintains
that he could not have assumed Auker's job. Frermann,
also an order filler, has been employed about 8 years and
was at one time a supervisor. Presently, he is in charge of
the room where the Respondent keeps its expensive
merchandise, such as 'watches and radios. Heltsley is the
son of a bookkeeper employed by the Respondent. He was
a student and worked about 3 hours per day as a stockman,
making records and displays and putting stock in bins in
the same order as in the Respondent's catalogue and order
form. Paine is the only qualified truckdriver employed by
the Respondent and was hired when the Respondent
bought a new truck and needed an employee who knew
how to handle it. Duggins is a dock employee and his job
involves carrying many heavy cases. It was plain that
Stroup could not have handled that heavy job. Campbell
had had experience as a retail store supervisor and, the
Respondent testified, was hired for training as an outside
representative. Hile formerly worked for the Company for
about 4 years and had substantial experience in the
Respondent's warehouse. According to the Respondent,
Hile worked out so well that he was made an assistant
supervisor in warehouse 4.
It will be recalled that Proctor testified that in a
conversation with supervisor Hornback the latter stated
that Proctor and Duggins were at the top of the list of
union button wearers that Hildebrand had and that
Hornback warned Proctor to watch his step and avoid
making mistakes. Proctor testified that Hornback made
these statements in the presence of employees Farrow and
Osborne. As previously stated, Hornback denied that he
made any such statements. Farrow testified that at lunch
on April 2, Hornback joined himself and Osborne and
Proctor and stated that Sidney Hildebrand "had made a
list of all the guys that wore the buttons and that he was
out to get us." On cross-examination, Farrow testified that
Hornback did not single out Proctor and say that Proctor
had better watch his step and not make any mistakes.6
Osborne did not testify as to any such conversation.
Considering all the testimony, I reach the conclusion that
Homback made no such statement.
While the matter is not free from doubt, and the timing
of the layoffs appears suspicious, on the whole I am not
satisfied that the General Counsel has made out a case of
unlawful discrimination. Accordingly I shall dismiss this
aspect of the complaint.
The case of Hayes stands on a somewhat different
footing. He had signed a union card on March 11 and
during the latter part of March began wearing a union
button on his cap. The Respondent asserts that Hayes was
terminated because he had "extreme difficulty" communi-
cating with others because he had a harelip. As we have
seen , Hayes worked for Winn-Dixie as a receiving and
shipping clerk for some 11 years, a job which necessitated
speaking to others. I found no difficulty in understanding
him, and from my observation neither did counsel for the
Respondent or counsel for the General Counsel. It would
seem obvious that Hildebrand did not regard his speech
defect as disqualifying, since he interviewed Hayes before
hiring him.7
The Respondent takes that position that Hayes was
discharged solely because he had a problem communicat-
ing with others by reason of the fact that he had a harelip.
On the other hand, counsel for the General Counsel
contends that this reason was plainly a pretext and that the
real reason for his discharge was his activities on behalf of
the Union. Hayes had worked some 11 years for Winn-
Dixie as a shipping and receiving clerk, a position which
required him to deal frequently with others. He voluntarily
terminated his employment with Winn-Dixie and was
shortly thereafter hired by the Respondent. I observed
Hayes very closely as he testified and I formed the opinion
that neither counsel for the parties, myself or anyone else,
so far as I could observe, had any difficulty in understand-
ing him although, it was evident, that his speech was not
altogether normal. In this connection, it might be observed
that he worked for 11 years for Winn-Dixie as a shipping
and receiving clerk where, obviously, on a day-to-day basis
he had to deal with a considerable number of other people.
G. The Reduction of Osborne's Wages
Osborne had been employed for about 15 years. For
some 5 or 6 years prior to February 1971, he had been a
supervisor over the shipping and receiving department.
Early in February, he asked Sidney Hildebrand to relieve
him of his supervisory duties for personal reasons;
Hildebrand told him that he would do so if Osborne
insisted, but that this necessarily would involve a reduction
in wages. At the time, Osborne received a salary of $150
per week. After some discussion it was decided that he
would be relieved of his supervisory duties, and he was told
that in order to avoid a substantial reduction in wages, a
new classification of maintenance man would be created
and he would be paid $3.45 per hour. Osborne thereafter
performed maintenance work and other miscellaneous
duties. After some 2 weeks of employment in this capacity,
his work on maintenance projects dropped to about 10 or
15 percent of his worktime. He still continued to receive
the hourly rate that had been established. However, about
April 1 Hildebrand called Osborne into his office and told
him that he intended to reduce his hourly pay to $2.95 per
hour, explaining that most of Osborne's work was in the
stockman's classification and it was not fair to pay regular
stockmen less than he was being paid. However, Hildeb-
rand informed Osborne that he would still receive $3.45 for
maintenance and that he was to keep a record of his work
6 Nothing in Farrow's prehearing affidavit alludes to Hornback's time he interviewed Hayes that he had a speech difficulty but that he should
statement
7 1 have not overlooked that Hildebrand noted in a memorandum at the
be hired on a "try out" basis
HILDEBRAND COMPANY
time and the nature of the work so that he could be paid at
the proper rate.
Counsel for the General Counsel contends that the
reduction from $3.45 to $2.95 was made in retaliation for
the union activity engaged in by Osborne and that
consideration of the sequence of events confirms this. He
argues that the record shows that Hildebrand directly
supervised and authorized all maintenance work and, in
consequence, it "necessarily follows" that Hildebrand
would know whether or not there was enough work to
justify establishing a maintenance classification. He also
points out that "the timing of the events" is critical, in that
the new classification and pay rate was established about
February 11, before there was any union activity; that
Osborne signed a union card on March 11, wore a union
button thereafter, and that his wages were reduced about
April 1. I must note , however, that there is no dispute that
after the first 2-weeks or so during which I infer that
Osborne caught up on the maintenance work that needed
to be done, it required considerably fewer hours of his time
to keep current with maintenance problems.
H. The Discharge of Donald Kress
Kress began working for the Respondent on February 8,
being assigned to the dock where he operated a forklift
truck about 80 percent of the time removing merchandise
from trucks and boxcars. He testified that he had operated
a forklift truck for his previous employer, Winn-Dixie, for
about 4 years and had never received any complaints. His
immediate supervisor was Sewell Fields. Kress signed a
union card on March 11 and wore a union button
beginning April 1. He was terminated on April 8, by
Sidney Hildebrand, for the stated reason that he had been
operating the forklift in a reckless manner, driving, it too
fast, and had repeatedly left the overhead door between
warehouse 2 and the dock open, causing discomfort to
employees working in the warehouse and allowing heat in
the warehouse to escape.
Shortly after Kress went to work, General Superintend-
ent Mayes, so Kress acknowledged, reprimanded him for
driving the forklift too fast. On another occasion Sidney
Hildebrand "admonished me about closing an overhead
door." Kress testified that on one occasion he had an
accident which resulted in damage to merchandise. He
related that he was moving a pallet which was precariously
stacked with merchandise and when he hit a slight dip the
load shifted and a carton fell off with the result that one or
two units in the package were broken. On another
occasion, as he was moving some merchandise the pallet
hit the corner of a wooden crate but caused no damage. He
also ran into a pushcart and, during his last week of
employment, while moving a high load, he hit a display
rack and several pieces of china fell on the floor and were
broken. He had frequent occasion to pass through the
doorway between the warehouse and the dock and by his
estimate he failed to close the door only three to five times
during the entire period of his employment.
Sidney Hildebrand testified that within 2 weeks after
8 Hildebrand testified that one Irving Zimmerman, an employee with
whom Hayes had worked , complained to (Hildebrand) that he had
681
Kress had been employed he heard from supervisors
Fields, Mayes, and Hornback that Kress was leaving the
overhead door open and driving the forklift recklessly.
Hildebrand made a memorandum, dated February 25, to
the effect that Fields told him that day that he had asked
Kress several times to close the overhead door but he was
constantly leaving it open. The memorandum also states
that Kress told Hornback that he would not close the door
because it was too much trouble to get on and off the lift
truck. Fields, the supervisor in the shipping and receiving
department, testified that the biggest problem he had with
Kress was that he left the warehouse door open. In
addition, he was careless in driving the forklift truck.
Fields estimated that he spoke to Kress on 20 or 25
different occasions about closing the door. On one
occasion foreman Hornback reprimanded Kress about
closing the door and Kress told Hornback "to go jump in
the lake." Although Kress estimated that the maximum
speed of the forklift was such that a man walking as fast as
he could would be able to keep up with it, Fields stated
that the maximum speed was 25 miles an hour. Fields
related that on one occasion he observed Kress come
around a curve too fast and knock part of the load off. He
also received complaints from Mayes and Hornback to the
effect that Kress knocked over and hit a hand truck or a
flat truck in the warehouse. Supervisor Hornback related
that on many occasions he talked to Kress about closing
the warehouse door, which had a sign adjacent to it that
read "please close door if heat is on." William Redding, an
order clerk and assistant supervisor in warehouse 2 (an
agreed nonsupervisory position), testified that the ware-
house is laid out in aisles at right angles, and that coming
into intersections at a fast speed there is danger that
someone might step in front of the forklift and be hit. He
also stated that Kress drove the forklift with the fork two
or three feet off the ground, which increased the danger to
persons who might step in front of it.
Upon a weighing of all the evidence, I am persuaded that
the Respondent terminated Hayes not because of his
speech defect but because of his activities on behalf of the
Union. I note that in the letter given Hayes, the
Respondent referred to a business slowdown and made no
mention of his speech problem. However, at the hearing
the Respondent defended his termination solely on the
basis of his speech inpediment. As I have noted, no one
had any difficulty understanding Hayes when he testified
and I am at a loss to understand, therefore, why the
Respondent would take the position that Hayes could not
communicate or be understood by other employees or
customers .8 In his brief, counsel for the Respondent
reminds me that I "made a tape recording of Hayes'
testimony, and we are sure that if he will play this
recording back, it will vividly recreate Hayes' problem in
this respect." I have played the recording back and after
doing so I have no reason to alter what I have stated above.
As noted above, Osborne for some 5 or 6 years prior to
February had been the supervisor of shipping and
receiving. He requested that he be relieved of his
supervisory duties and Hildebrand told him that if he
difficulty understanding Hayes. Zimmerman did not testify.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insisted on this it would necessitate a reduction in wages.
However Osborne was told that, in order to avoid a
substantial reduction in wages, a new classification of
maintenance man would be created and he would be paid
$3.45 an hour, compared to his previous salary of $150 a
week. After working substantially all of his hours on
maintenance projects for the first 2 weeks, the current
maintenance problems occupied only 10 or 15 percent of
his time; his other work involved driving the truck, dock
work, and stockman. Osborne was called into Hildebrand's
office and told that it would be necessary to reduce his pay
to $2.95 per hour, Hildebrand explaining that since most of
his work was in the stockman's classification it was not fair
to pay the other stockmen less than he was being paid.
However, Hildebrand said that Osborne should keep track
of his work time and he would receive $3.45 for
maintenance work.
While the timing renders the Osborne case somewhat
suspicious, I conclude on the record and the probabilities
of the situation that Hildebrand did not unlawfully
discriminate against Osborne by reducing his wages.
Therefore, I shall dismiss this allegation of the complaint.
1. The Termination of Donald Kress
Without repeating what has been said above regarding
Kress' brief employment with the Respondent, I think no
other conclusion is permissible except that Kress was
reckless and accident-prone, and that he disregarded
instructions about closing the overhead door. I have not
overlooked the fact that for a portion of the time he was
employed the overhead door was not operating properly
and it was necessary that he use the fire door. However, the
overhead door could normally be opened by pushing an
electric button reachable from the driver's seat and closed
by pulling a cord that was hangmg down.
On the basis of the evidence, I shall dismiss the
allegations in the complaint relating to Kress.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of Section 7 rights , and to take certain
affirmative action.
The Respondent having discriminatorily discharged
employee Hayes, I find it necessary that it be ordered to
offer him full reinstatement, with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1960), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from the date of the discharge to the date
reinstatement is offered.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Hildebrand Company, Louisville, Kentucky, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. General Drivers, Warehousemen and Helpers, Local
No. 89, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization, within the meaning of Section 2(5) of the Act.
3. By stating that wages were frozen insofar as merit
increases were concerned during the pendency of a union
election petition, and that employees would be under
surveillance the Respondent engaged in unfair labor
practices within the meaning of Section 8(1) of the Act.
4. By terminating Shelby Hayes on April 2, 1971, the
Respondent committed an unfair labor practice violative
of Section 8(a)(3) and (1) of the Act.
5. By laying off Lynne Oswalt, Larry Proctor, and
Elery Stroup, the Respondent did not commit any unfair
labor practices.
6. By terminating Donald Kress the Respondent did
not commit any unfair labor practice.
7. By suspending Harold Farrow for I week the
Respondent did not commit any unfair labor practice.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]