Hoffman-Taff, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1959

123 N.L.R.B. 1462 (N.L.R.B. 1959)

1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminal equipment from Savannah to Jacksonville. Following the strike, Respond-
ent resumed city pickup delivery service at Savannah through a cartage arrangement
with Durrence Transfer Company, Inc., and did not recall Shuman and Dempsey to
work. Within 10 days or 2 weeks thereafter Durrence Transfer Company, Inc.,
notified Respondent that it did not need the services of Shuman and refused to em-
ploy him unless Respondent would guarantee minimum revenue of $250 per week
from the cartage business of Howard Hall Company, Inc. Respondent declined to
make such a guarantee, and engaged another cartage agency (McKinney) to handle
its city pickup and delivery service in Savannah. The McKinney cartage company
was not a party to any collective-bargaining agreement with the Union. Following
the new cartage agency agreement with McKinney, the Union filed a charge against
Respondent on July 24, 1958, alleging unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the Act.
Concluding Findings
From a preponderance of the evidence in this case, I find that E. K. Baker, Jr.,
supervisor of Respondent's terminal operations at Savannah, Georgia, without con-
sulting superior management officials, discharged L. S. Shuman on April 25, 1958,
and Benjamin H. Dempsey on May 2, 1958, because of their membership in the
Union. I further find, however, that upon protest of the Union to higher manage-
ment authority, the Respondent immediately reinstated each of these employees to
his former or substantially equivalent position without any loss of pay or other
rights and privileges of employment. Since these two men and the supervisor in-
volved constituted the entire working force of Respondent at the Savannah installa-
tion, their reinstatement and back pay was a full and complete remedy for any
discrimination in regard to hire or tenure of employment or any term or condition
of employment to discourage membership in a labor organization.
It is clear from the uncontradicted testimony of President Howard Hall and
Traffic Manager Joe Reguett that prior to aforesaid discrimination the Respondent
contemplated the resumption of a cartage agency if and when Birmingham Paper
Company ceased buying its paper supplies from Union Bag Company at Savannah.
Indeed, it was by reason of this account that Respondent had established the
Savannah terminal in the first place. Records of Respondent clearly indicate that
in the absence of tonnage shipped by Union Bag Company to Birmingham it was
substantially more economical to handle the city pickup and delivery service at
Savannah through a cartage agency, thereby eliminating excessive overhead ex-
penses incurred in the operation of its own terminal. Nevertheless, Respondent
wished to maintain the status quo until Birmingham Paper Company announced its
new source of supply, and until Respondent's disabled terminal manager (E. K.
Baker, Jr.) could make satisfactory adjustment to maintain his livelihood through
anticipated employment of his wife upon completion of a business course, or other-
wise. Apparently the Union was fully advised of Respondent's intention to close
out its terminal in Savannah and acquiesced in it to the extent of suggesting and
recommending the particular cartage company to be employed by Respondent. It
was not until Respondent discontinued operating through Durrence Transfer Com-
pany, Inc., rather than guarantee to it revenue of $250 per week regardless of
tonnage handled, and employed another cartage company (McKinney) who was
not under contract with the Union, that the Union filed a charge on July 24, 1958,
alleging that Respondent had since May 19, 1958, refused to bargain collectively
and terminated the employment of Shuman and Dempsey.
Excepting the temporary suspension of Shuman and Dempsey by a minor super-
visor (E. K. Baker, Jr) without loss of pay or other rights and privileges, I find no
unfair labor practices by Howard Hall Company, Inc., as alleged in the complaint.
[Recommendations omitted from publication.]
Hoffman-Taff, Inc. and Oil, Chemical and Atomic Workers
International Union , AFL-CIO. Case No. 17-CA-1356. June 2,
1959
DECISION AND ORDER
On March 10 , 1959, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
123 NLRB No. 164.
HOFFMAN-TAFF5 INC. 1463
,the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
.and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
,and the General Counsel filed exceptions to the Intermediate Report
,and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
,has delegated its powers in connection with this case to a three-
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 and briefs, and the entire record in
.the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the following additions and
,Modifications:.
1. In finding that the Respondent violated Section 8 (a) (1) of the
Act, we rely only on the following actions or statements of the
.Respondent :
(a) Foreman Zay's statement to employees Stewart and Hubbard
that they "couldn't be discharged for union activities but there were
ways."
(b) Foreman Zay's warning to employee Lish "about talking union
activities and being with the Union, that it was going to have to quit,
that he had been warned before and it was too late not to, whether
[Lish and other employees] changed or not, [they were] going to
be fired."
(c) Foreman Zay's statement to Lish that he, Zay, knew which
men were union members and had attended the first union meeting
and also had been going to the National Labor Relations Board, and
that he had read the affidavits submitted by the men to the Labor
Board, coupled with Zay's refusal to tell Lish how he had obtained
such information, thereby creating the impression that Respondent
had engaged in surveillance.
(d) President Hoffman's statement, in substance, while discussing
a possible future promotion to personnel manager, that he questioned
Tice's loyalty to the Respondent because he had heard rumors that
Tice was an "organizer" of "unrest" among the employees, thereby
conditioning consideration for future promotion upon present aban-
donment of concerted activities.
(e) Director of Production Langston's statement to Tice, in the
context of Crowder's unlawful discharge and Tice's selection as his
replacement, that Respondent was aware "of a good deal of unrest,
even dissension that seemed to be growing among the workers and
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we had very strong rumors of his [Tice's] role in creating such
dissension."
(f) Foreman Zay's statement to Crowder that the Respondent
knew of the union meetings and how many men attended the meet-
ings and that Crowder and Tice "were behind it" and "were going to
be fired" unless they halted these activities and "if necessary a trap
could be laid."
2. We find that the Respondent's granting of a wage increase on
June 2, 1958 , in order to forestall the employees ' concerted activities,
violated Section 8 (a) (1) of the Act.
3. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8 ( a) (3) and ( 1) of the Act by discharging
Crowder for engaging in concerted activities . The -Trial : Examiner=
also found that the Respondent violated Section 8(a) (3) and (1) by
-transferring Tice from the midnight to the day shift because of his
union activities . However , the complaint alleged only a violation of
Section 8 ( a) (1) for this discriminatory treatment and did not allege
a violation of Section 8(a) (3). We find, accordingly, that the Re-
spondent violated only Section 8(a) (1) of the Act with respect to its
treatment of Tice. However , this does not affect the remedy in any
manner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent , Hoffman-Taff,
Inc., its officers , agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Oil, Chemical, and Atomic Work-
ers International Union, AFL-CIO, or in any other labor organiza-
tion of its employees , by discharging , refusing to reinstate , changing
shifts, or in any other manner discriminating against them in re-
gard to hire or tenure of employment or any term or condition of
employment.
(b) Threatening discharge for union membership and activities,
granting benefits in order to induce employees to refrain from union
activities, engaging in, or creating the impression that it is engaging
in surveillance of employees ' union activities , conditioning considera-
tion for promotion upon abandonment of concerted activities as an
employee, or in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
1 Crosby Chemicals, Inc., 121 NLRB 412.
HOFFMAN-TAFF, INC. '1465
for the purpose of collective bargaining or other mutual aid or pro-
'tection as guaranteed in Section 7 of the Act, and to refrain from any
and all such activities , except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion 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 Robert E. Crowder , Jr., immediate and full reinstate-
ment to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges previously
enjoyed, and make Crowder and Jim Tice whole for any loss of pay
they may have suffered by reason of the discrimination against them,
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its
agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due
and the right of reinstatement under the terms of this Order.
(c) Post at its Springfield plant, copies of the notice attached
hereto marked "Appendix ." 2 Copies of said notice , to be furnished
by the Regional Director for the Seventeenth Region, shall, after
'being duly signed by Respondent, be posted immediately upon receipt
thereof and be maintained by it for 60 consecutive days thereafter in
conspicuous places where notices to employees are customarily posted.
Respondent shall take reasonable steps to insure that such notices are
not altered , defaced, or covered by any other material.
(d) Notify the aforesaid Regional Director in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Oil , Chemical and
Atomic Workers International Union, AFL-CIO, or in any other
labor organization of our employees , by discharging or in any
other manner discriminating against them in regard to their hire
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or tenure of employment or any term or condition of employment.
WE WILL NOT threaten to discharge our employees for union
membership and activities, grant benefits to induce employees to
refrain from such membership and activities, engage in, or create
the impression that we are engaging in, surveillance of our em-
ployees' union activities, condition consideration for promotion
upon abandonment of concerted activities as an employee, or in
any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named union or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining. or other
mutual aid or protection, and 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
authorized by Section 8(a) (3) of the Act. All our employees
are free to become or remain members of the above-named or any
other labor organization.
WE WILL offer Robert E. Crowder, Jr., immediate and full re-
instatement to his former or a substantially equivalent position
without prejudice to his seniority or other rights and privileges
previously enjoyed by him, and make Crowder and Jim Tice
whole for any loss of earnings resulting from our discrimination
against them.
HOFFMAN-TAFF, 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 charges filed by the aforenamed Union, the General Counsel of the National
Labor Relations Board issued a complaint, dated October 30, 1958, against the afore-
named Respondent Company, alleging that Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136,
herein called the Act. Respondent filed an answer denying the unfair labor practices
alleged.
Pursuant to notice, a hearing was held on January 7-8, 1959, at Springfield,
Missouri, before the duly designated Trial Examiner. The General Counsel and
Respondent were represented at the hearing and had opportunity to examine and
cross-examine witnesses, to introduce relevant evidence, to present oral argument at
the close of the hearing, and thereafter to submit briefs. Respondent's motion to
dismiss is disposed of in accordance with the findings and conclusions stated
hereinafter.
HOFFMAN-TAFF, INC. 1467
Upon the entire record and my observation of all witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Missouri corporation with its principal office at Springfield,
Missouri, where it is engaged in the manufacture of chemicals and chemical prod-
ucts; it annually makes interstate shipments of chemicals or chemical products
valued at more than $50,000. I find that Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent discriminatorily discharged Robert E.
Crowder, Jr., and discriminatorily transferred Jim Tice from one shift to another,
and that it engaged in other specified activities in violation of the Act. Unless
otherwise stated, all the events recounted below occurred in 1958.
Crowder had worked in Respondent's laboratory for 6 months following which he
was laid off for economic reasons. He returned in February 1957 as a chemical
operator which position he held until his discharge in June 1958. Tice has been
in Respondent's employ as a chemical operator since March 4956.
In March or April 1958 employees approached Crowder and Tice with respect to
forming a labor organization in the plant. Crowder and Tice contacted an official
of the Union and as a consequence, in mid-April, Crowder, Tice, and employee
Carl Pursley met with a union representative. A union meeting for Respondent's
employees was held in Laborers Hall on June 3, which approximately 15 employees
attended. Two days later, June 5, another such meeting was convened. Only two
employees attended. This organizational activity reached its peak between June I
and June 10, and the employees on Respondent's midnight shift were most active
in such activities. Both Tice and Crowder worked on that shift.
On April 29, meanwhile, Respondent President Walter Hoffman called Tice to
his office. Hoffman told Tice that there was "unrest" in the plant, that Hoffman
was making some drastic personnel and policy changes, and that Tice was being
transferred from the midnight shift to the day shift. (This will be discussed more
fully in connection with Tice's case.) On May 1, Respondent transferred Foreman
Robin Watkins from the midnight to the day shift, and at the same time transferred
day shift Foreman Zay to the midnight shift with day leadman Bob Dameron
becoming Zay's assistant supervisor on the midnight shift. During working hours
the following day (May 2), Hoffman held two employee meetings, covering em-
ployees on all shifts; he read them a prepared speech and Respondent thereupon
mailed copies of the speech to all employees.
In his speech to the employees Hoffman stated that Respondent had engaged a
"consulting firm" to survey Respondent's "pay policies" and "so-called fringe bene-
fits" and that a Robert Thompson of said "consulting firm" would interview various
employees. Hoffman requested the employees to speak freely with Thompson and
he advised them that Thompson would treat such employee interviews as confidential
and would make only general recommendations to Respondent based on his investi-
gation without divulging what any employee would say during the interview. In the
plant library on or about May 5, said Thompson did conduct personal interviews
with many employees including Tice and Crowder, during the course of which he
advised employees that he would treat everything they told him as confidential;
Thompson discussed general plant conditions pertaining to personnel and manage-
ment with the employees and he asked for suggestions to remedy employee griev-
ances. One employee, Ivan Stewart, testified that Thompson asked Stewart's
opinion about the Union, but that Thompson told Stewart he did not have to answer
unless he wanted to. Thompson is Respondent's attorney of record in the instant
case. Thompson testified that the law firm with which he is associated does man-
agement consulting work and that it was in such capacity that he conducted the
mentioned interviews and that his only report to Respondent was in the nature of
general recommendations to Respondent.
On June 2, Hoffman held two more employee meetings, covering all shifts. This
time Hoffman announced a plantwide wage increase. Hoffman also stated at the
time, as he had in effect told the employees in his May 2 speech, that Respondent
was a growing concern and that he hoped the employees would grow with it and
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "we could do it without having a union." Regular paychecks distributed the
next day included the mentioned wage increases retroactive to May 16. Hoffman
testified that he gave the increases "to straighten out personnel . . [in order] to
get the production out of the plant."
Also in May, Respondent posted on its plant bulletin board a number of com-
pany rules, one of which stated in part that "permission must be obtained before
soliciting or collecting of any contribution on company premises." This rule had
not appeared on the bulletin board since April 1956.
It is recalled that approximately 15 employees attended the Union's first organiza-
tional meeting on June 3, that 2 employees attended the next such meeting on
June 5, and that Respondent discharged Crowder on June 10. Early in June,
immediately after Foreman Zay had berated some night shift employees concerning
a practical joke they had played on him, Zay returned to one of the employees,
Ivan Stewart. According to Stewart's credible testimony, Zay apologized to Stewart
with the explanation that he, Zay, was "under a strain" in that "the front office was
putting the pressure on him and that they kind of had him between two fires." Zay
further stated that Respondent "had the names of 17 men up in the front office" and
that "I [Zay] don't have to tell you what that's for." Although Zay did not men-
tion the word "union" in this conversation, Stewart testified that he understood
Zay's remark to refer to the fact that 17 men were supposed to have attended the
first union meeting. Zay did not, in his testimony, otherwise explain the reference
to "!17 men." During this same period, Zay also asked employees Stewart and
Jerry Hubbard to read the aforementioned no-solicitation rule, a copy of which he
showed them at the time, and he told them, according to Hubbard's credible testi-
mony, that "we couldn't be discharged for union activities but there were ways. . .
Zay did not finish this sentence. Hubbard told Zay that he, Hubbard, had heard
that Respondent had a list of names of the men who had attended the first union
meeting and Hubbard asked whether his name was on such list. Zay replied that
he "knew a lot of things that he wasn't at liberty to tell."
Also during this early June period, Zay observed Crowder and employee Louis
Lish in conversation during working hours. Zay told them according to Lish's
credible testimony "to bust it up, that he [Zay] didn't want to see us talking around
together, that there's too much union activities going on and he didn't want to see us
.together." Later that day, according to Lish, Zay warned Lish "about talking union
activities and being with the Union, that it was going to have to quit, that he had
been warned before and it was too late not to, whether we changed or not, we was
going to be fired." Zay named employees Lish, Carl Pursley, and Alvin Johnson in
such connection. (During this same period Zay told employee Bill White according
to White's credible testimony, that Respondent was going to fire Lish, Pursley,
Johnson, Tice, and Crowder.) A few days later (June 10, the day of Crowder's
discharge), Zay summoned Lish to the office of James Langston, director of produc-
tion. There, in the presence of Zay and Plant Manager A. J. Chitwood, Langston
told Lish, according to Lish's credible testimony, that Zay had informed Langston
that Lish was the "main one . . . pushing the Union"; Langston further told Lish
that he knew that other employees were also "in it"; Langston also referred to the
fact that employees were bunching up and talking about unions during working
hours, and he told Lish that Lish's union opinions were his own affair. Later that
month after Crowder's discharge and unfair labor practice charges were filed in
this case, Zay told Lish that he, Zay, knew which men were union members and
had attended the first union meeting and had been going to the Labor Board and
also that he had read the affidavits submitted by the men to the Labor Board.
Zay refused to tell Lish how he, Zay, had obtained such information.'
Tice
On April 29, Plant Manager Chitwood sent Tice into President Hoffman's office,
whereupon Hoffman asked Tice what Tice thought his future would be with Re-
spondent. Tice replied that he had a college degree and that he would continue
working with Respondent and try to advance himself as best he could. Hoffman
told Tice, as already stated, that the Company was instituting some personnel and
policy changes and that Tice was being transferred from the midnight shift to a
similar job on the day shift. With Respondent's knowledge and consent, Tice had
been under a contract as a part-time, public school teacher, and he expressed his
3 Zay testified that he asked Lish "point blank" whether Lish was "interested in a
union, your outside activities does it tie in with union affairs in this company." Zay
further testified that he told Lish that Lish was entitled to feel as Lish likes about such
matters but that Zay did not want any interference with production in Zay's department.
HOFFMAN-TAFF, INC. 1469
desire to remain on the night shift in order to continue in the teaching job and in
order not to forfeit a month's pay under his teaching contract and in order not to
lose the premium pay given to employees on the midnight shift. Hoffman gave
Tice a day off to straighten out the teaching matter and he told Tice the next day
that Respondent wanted Tice on the day shift to work with more experienced per-
sonnel and to be "looked over" for possible advancement to a more productive posi-
tion. Hoffman also told Tice that there would be an opening as personnel manager
in a year or so but that, in such position, there could be no question of a man's
"loyalty to the Company." When Tice then questioned this last remark, Hoffman
explained that there had been rumors that Tice was an "organizer" of "unrest"
among the employees for "wages." Hoffman did not mention the word "union."
Hoffman testified that Tice had no choice in the matter and was required to transfer
to the day shift on May 1.2
On June 10, the day of Crowder's discharge, Chitwood summoned Tice and, in
Langston's presence, told Tice that Respondent needed a man on the midnight shift
(as replacement for Crowder) and Chitwood asked Tice to return to such shift..
During this same conversation, Langston also told Tice that Respondent was aware:
"of a good deal of unrest, even dissension that seemed to be growing among the:
workers and we had very strong rumors of his [Tice's] role in creating such dissen-
sion." Langston testified in this connection that Respondent "had heard rumors of
unions that may have been the subject of dissension, it undoubtedly was some of it,.
but we didn't know specifically." Langston testified that he told Tice that Tice's
union opinions were his own but that Respondent objected to visiting and talking:
during working hours. Tice thereupon moved into Crowder's job on June 11, and:
he remained in such position until September when he obtained a requested transfer
to the job he now holds on the evening shift which begins at 4 p.m. Respondent
offered Tice a laboratory job in September, but Tice rejected it.
Crowder
On June 5, according to Crowder's credible testimony,s Foreman Zay called
Crowder aside and informed Crowder that he, Zay, "was under pressure from the
front office, that he [Zay] had gone as far as he could towards settling the problem
and that the Company was aware of . . . a union movement, and Mr. Tice and
I [Crowder] were responsible for it, that we had organized it and we were .
carrying it on." Zay called Crowder's attention to the fact that both Crowder and
Tice were married men with "family responsibilities" and Zay further told Crowder
that Respondent knew of the union meetings and how many men attended the meet-
ings and that Crowder and Tice "were behind it" and "were going to be fired"
unless they halted these activities. Zay further advised Crowder that no one is
perfect and that "if necessary a trap could be laid" and Zay referred to an instance
involving another Springfield corporation where, he told Crowder, "a trap was laid
for an undesirable employee [who] . was eliminated in that manner." 4
Hoffman testified that he directed Langston to fire Crowder for being found
asleep on the job by Zay on June 4 (the day before Zay's aforerecited conversation
with Crowder). Before taking up this specific matter, I shall set forth certain gen-
eral contentions and testimony of Hoffman and other plant officials.
Hoffman testified that the quality and quantity of production had been falling off
since the fall of 1957 and Chitwood testified that the plant was experiencing produc-
tion problems in the spring of 1958. Hoffman testified that the production decline
was "particularly obvious" on the midnight shift; Chitwood testified that Respondent
first ascertained in May 1958 that the midnight shift was causing the production
difficulties and that Respondent determined the cause to be lack of adequate super-
vision. Hoffman testified that in "personally" checking the "whole situation" he
found "griping, rumors of unrest, a certain amount of confusion" and that a "good"
part of it pointed to the midnight shift. Hoffman testified that he had heard rumors
that Tice and Crowder, both of whom were on the midnight shift, were "union
instigators."
Because of this "unrest" and the alleged production situation, Hoffman testified
in effect that he engaged Thompson to make the aforementioned survey and that he
2 The record does not show that any other employee was involuntarily transferred from
one shift to another.
3 Crowder impressed me as an intelligent, honest witness worthy of belief.
4 Zay testified that he had a "man-to-man talk" with Crowder arising out of Crowder
sleeping on the job. Zay testified, among other things, that lie asked Crowder what
Crowder and other employees had to gain from unions and that he told Crowder that he
did not feel the employees needed a union.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transferred Foreman Zay and Dameron to the midnight shift and Foreman Watkins
to the day shift. Hoffman testified that he instructed Zay to improve production
and to "straighten out any personnel problems." 'Zay was further instructed to re-
port directly to Hoffman. On or about June 17, Zay returned to the day shift,
leaving Dameron alone on the midnight shift; by this time, according to Hoffman,
the production problems and "unrest" on the midnight shift had been remedied.
Crowder was a chemical operator and his principal function was to check various
gauges and other instruments in connection with chemical operations. Crowder's
operations were physically separated and some distance from other plant operations
and he normally worked alone. In May and June, however, he had one Peabody
with him as a trainee. Zay and his assistant, Dameron, toured the premises, to-
gether and separately. When Respondent was running certain products, in the
course of his job Crowder was required to leave his department and go to another
department every 15 or 20 minutes for approximately 10-minute periods. Until
Peabody came on the job, Crowder was thus required to leave his mentioned opera-
tions wholly unattended, as Respondent knew. Also before Peabody's arrival,
various supervisors would relieve Crowder for rest periods and they would take
over Crowder's functions during such periods. A continuous humming noise of
equipment in Crowder's department is such as to be conducive to sleep, and
Crowder forthrightly admits that he did fall asleep or doze off several times in May.
Supervisors were similarly affected, for he testified without contradiction that upon
returning from rest periods, he occasionally found relieving supervisors asleep at
the control panel. Crowder does deny that he was asleep on June 4 and he further
testified that he had never been warned on the sleeping occasions in May that
recurrence would result in discharge.
Hoffman testified that Zay reported to him on two occasions in May that Crowder
had been found asleep that month. The first time, according to Hoffman's testi-
mony, Hoffman instructed Zay to warn Crowder that a repetition would result in
discharge. The second time in May, according to Hoffman's testimony, Hoffman
instructed Zay to tell Crowder that "if there was one more incident he would be
discharged definitely." Hoffman testified in effect that Zay reported the alleged
June 4 sleeping incident to him a day or two later and that he thereafter called Zay
to his home on June 8 to review the entire matter with Zay. Hoffman testified, in
effect, that he wanted to proceed cautiously because he realized that Crowder was
"interested in the Union" and he, Hoffman, wanted to avoid involvement on a
charge of illegally firing Crowder for union activities. Accordingly, testified Hoff-
man, he discussed the matter with Zay and consulted his lawyer and only then did
he finally decide to fire Crowder because of the alleged June 4 incident.
We turn now to Zay's and Dameron's testimony. Zay testified that he first found
Crowder asleep on May 3 and that he told Crowder that Respondent would not
tolerate sleeping. On May 6, Dameron observed Crowder asleep and reported the
matter to Zay; Zay testified that he immediately went to Crowder's operations and
found Crowder awake and that he said nothing to Crowder about sleeping because
Crowder was performing very well. Dameron and Zay testified that they found
Crowder asleep on May 23 and Zay testified that Dameron thereupon left and that
he, Zay, discussed "production" with Crowder and mentioned sleeping and told
Crowder that Respondent would not tolerate anything that would snow down pro-
duction.5 Dameron testified that he did not observe Crowder sleeping on any other
occasion. Zay testified that he found Crowder asleep on June 4. Zay testified that
on June 8 he reported the June 4 incident to Crowder as well as all prior incidents.
He also testified in effect that he did not report the May 6 and 23 incidents until his
report to Hoffman on June 8; then he changed his testimony and stated that he had
mentioned the May 6 and 23 incidents to Hoffman on May 23, but that they did
not otherwise discuss the matter at the time.
Conclusions
The record preponderantly establishes that, by the conduct of Hoffman, Zay, and
Langston, Respondent threatened employees with reprisal because of union member-
ship and activities and engaged in interrogation in such connection, granted wage
increases to discourage union organizational activities, and either engaged in or
created the impression of engaging in surveillance of the employees' union activities.
Respondent has thereby violated Section 8(a)( I) of the Act.
5 For the credible version of this conversation, see Crowder's aforecited testimony above.
This is the conversation about entrapment and the fact that Tice and Crowder would be
discharged unless they ceased their union activities.
PLASTI-LINE INCORPORATED 1471
The question in connection with Crowder's discharge is not whether Respondent
may discharge employees for sleeping on the job. That it may do so goes without
saying. I find that Crowder was not asleep on the job on June 4 and that Hoffman
did not believe that he had been asleep . I am convinced , on the record herein, that
Crowder's discharge. and by Tice's removal to the day shift and particularly by
Zay's and Hoffman 's aforementioned contemporaneous actions, Respondent sought
to thwart the organizational drive among the employees . As Respondent 's asserted
reason for Crowder's discharge is without merit , so is its claimed reason for separat-
ing Tice from midnight shift employees who were most interested in organizing a
union. Upon all the foregoing and the entire record in the case , I find that Respond-
ent discharged Crowder and transferred Tice because of their prominent union role
among the employees .- • Respondent has thereby violated Section 8(a) (3) and (4)
of the Act.
IV. CONCLUSIONS OF LAW
1. Oil, Chemical and Atomic Workers International Union , AFL-CIO, is a labor
organization within Section 2(5) of the Act.
2. Respondent has violated Section 8(a)(1) and (3) of the Act and these unfair
labor practices are.unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and tenure
of Robert E. Crowder , Jr., I shall recommend that Respondent offer immediate
and full reinstatement . to his former or a substantially equivalent position , without
prejudice to his seniority and other rights and privileges , and make him whole for
any loss of pay he may have suffered as a result of the discrimination against him
by payment to him of a sum of money equal to that which he would have earned as
wages from the date of such discrimination to the date of offer of reinstatement,
less his net earnings during such period , the back pay to be computed on a quarterly
basis in the manner established by the Board in F. W . Woolworth Company (90
NLRB 289). I shall also recommend that Respondent make whole Jime Tice for
loss of wages in the amount of the shift differential from the date of his discrimina-
tion in May . 1958 until his return to the midnight shift on or about June 11, 1958.
It will also be recommended that Respondent preserve and upon reasonable request
make all pertinent wage records available to the Board or its agents . I reject the
General Counsel 's contention that Tice be reimbursed for any loss of earnings from
his teaching position upon his forced transfer to the day shift.
In view of the nature of the unfair labor practices committed , I shall also recom-
mend that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
[Recommendations omitted from publication.]
Plasti-Line Incorporated and Harry W. Brooks, Ralph P . Brooks,
and Bruce M. Edwards , d/b/a Sign Fabricators and Oakie
Triplett , Haskell E . Kelly, Charles Oglesby, Bishop Hatmaker,
Floyd V. Snyder, Archie B . Russell , John C. Cummings
Plasti-Line , Incorporated and Harry W. Brooks , Ralph P. Brooks,
and Bruce M. Edwards, d/b/a Sign Fabricators and Henry C.
Hartgrove . Cases Nos. 10-CA-2969, 10-CA-2969-1 through
10-CA-2969-6, and 10-CA-3012. June 2, 1959
DECISION AND ORDER
On April 15, 1958, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceedings finding that
123 NLRB No. 173.