Homer Gregory Co., Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1959

123 N.L.R.B. 1842 (N.L.R.B. 1959)

1842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national Association , AFL-CIO (R. C. Mahon Construction Company), 122 NLRB
6311; Local Union No. 450, International Union of Operating Engineers, AFL-CIO
(Tellepsen Construction Company), 122 NLRB 564. No tacit arrangements or
understandings having been established, I accordingly also find that the record does
not preponderantly establish that Respondent "failed and refused to clear" Copeland
in pursuance thereof. I am also constrained to find, as Respondent further con-
tends, that Copeland's termination was a voluntary quitting and, therefore, that
Respondent did not cause Armco to discharge him Local 983, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO (0. W. Burke), 115 NLRB 1123,
1131; Local 791, International Longshoreman's Association, Independent (T. Hogan
& Sons), 114 NLRB 1004, 1011-1012. I accordingly conclude that Respondent has
not violated Section 8(b) (1) (A) and (2) of the Act as alleged herein.
[Recommendations omitted from publication.]
Homer Gregory Co., Inc., and United Brick and Clay Workers
of America, AFL-CIO. Case No. 9-CA-1168. June 06, 1959
DECISION AND ORDER
On June 25, 1958, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The General Counsel filed exceptions limited to the remedy and a
supporting brief.
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 recommenda-
tions of the Trial Examiner with the following modifications, amend-
ments, and additions :
1. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in violation of Sec-
tion 8 (a) (1) of the Act by interrogating its employees regarding their
union activity, threatening employees with economic reprisal, promis-
ing economic benefits if they abandoned the Union, stating it had
reduced the working hours of employees because of their union mem-
bership and threatening to further reduce them and by otherwise
interfering with the exercise by the employees of the rights guar-
1 Respondent has excepted to all adverse credibility findings of the Trial Examiner and
in its brief attributes bias and prejudice to him Upon an examination of the record, we
find no merit in the exceptions and the allegations of bias and prejudice. Accordingly, we
adopt the Trial Examiner's credibility findings. Universal Camera Corporation v.
N.L.R B., 340 U.S 474, 496-497.
123 NLRB No 211.
HOMER GREGORY CO., INC. 1843
anteed in Section 7 of the Act. As the instances of interrogation
occurred against a background of threats of reprisal for engaging in
union activities we find them to constitute violations of Section
8(a) (1).1 Insofar as the Respondent threatened employees with
economic reprisals for union activity, these are patent violations of
the Act.
2. On May 21, 1957, a majority of the employees of the Respond-
ent, in a Board-conducted election, voted in favor of the Union.
Respondent had been working two 8-hour shifts. On June 10, with-
out any previous notification to the Union of its intentions, it reduced
from 8 to 5 hours the working hours of the employees who had voted
in favor of the Union except one or two, while either retaining the
usual hours or increasing the hours of its other employees. Respond-
ent sought to justify the reduction in hours on the basis of economic
necessity. The Trial Examiner rejected this defense and found the
reduction constituted a violation of Section 8(a) (1).
Without reference to the justification for Respondent's reduction
of operations, we find, in agreement with the Trial Examiner, that its
selection of employees to be reduced was discriminatorily motivated.
As stated above, only members of the Union. were reduced in hours on
June 10, 1957, while all other employees, some with less seniority,
either retained their usual hours or were increased from 8 to 10 hours.
As far as the record shows only one union member, Thomas, benefited
by the increase. These facts, coupled with the antecedent threats of
Gregory to reduce the hours of the union members because they had
voted for the Union, and in the background of the antiunion attitude
of Respondent, evidence a clearly designed discriminatory selection.
of union members.3
We agree with the Trial Examiner that the Respondent knew the
identity of the members of the Union. Thus, subsequent to the elec-
tion, Gregory told various employees, including Kidd, Black, and
Trent, that he knew those who had voted for the Union. Accordingly,
like the Trial Examiner, we find on the basis of the entire record that
the Respondent, by June 10, 1957, knew which of its employees had
joined or voted for the Union.
The record shows that the Union won the election 26 to 20. In-
cluded in the 20 voting against the Union were 11 loggers who worked
in the woods in another county, leaving 9 plant employees. The work-
ing time of none of these nine plant employees was reduced and the
hours of several increased to 10 by working both 5-hour shifts. On
the other hand, the hours of all. union employees were reduced. The
2N.L.R.B. v. Syracuse Color Press, Inc., 209 F. 2d 596 (C.A. 2), cert. denied 347 U.S.
966; Blue Flas h Express , Inc., 109 NLRB 591.
3Montnomery Ward & Co. v. N.L.R.B., 107 F. 2d 555 (C.A. 7) ; W. C. Nabors Company.
89 NLRB 538, enfd . 196 F . 2d 272 ( C.A. 5), cert . denied 344 U.S. 865 ; Sebastopol Apple
Growers Union, 118 NLRB 1181, 1212, 1213.
1844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only exceptions were Hobart Thomas, and Trent who, the Trial
Examiner found, was believed by Respondent to have voted in its
favor. The complaint alleged, and the Trial Examiner found, 18
union members were thus reduced. As against these facts, a review
of the record discloses no employee who Gregory believed voted
against the Union was reduced in hours. This Board, with court
approval, has often held that it is within its province to draw infer-
ences from testimony showing evident disparity in the percentages of
union and nonunion employees involved in a layoff.' We find, there-
fore, in agreement with the Trial Examiner, that Respondent failed
to substantiate its contention that ability was the determinative factor
in selecting employees for the reduction, and offered no valid ex-
planation why more senior employees were reduced in hours and those
with less seniority were not.
Under all the circumstances herein, including the repeated threats
to cut the hours of the union adherents, the failure of Respondent to
give a satisfactory explanation for selecting particular employees for
the reduction, and the gross disparity in the percentage of union ad-
herents reduced, coupled with the fact that no nonunion adherents,
even those with less seniority, were reduced, we conclude that Re-
spond.ent's selection of the employees for the reduction was discrimina-
torily motivated and in fulfillment of its threats to punish its em-
ployees for voting for the Union. We therefore find that Respondent
by such discriminatory selection of employees for the reduction in
hours violated Section. 8 (a) (3) and (1) of the Act.
3. The Trial Examiner found that Respondent discharged em-
ployee Bill Curtis, on July 3, 1957, for violation of a rule forbidding
employees to leave their work, which rule he found was designed
either for a discriminatory purpose or to discourage union member-
ship and activities. We find merit in the Respondent's exceptions to
the above findings
The evidence shows that about July 1, the Respondent posted a
notice which, among other things, prevented employees from leaving
work. Though the Trial Examiner found the purpose of the rule to
be discriminatory, the complaint of the General Counsel did not so
allege-nor does the Trial Examiner set forth the Respondent's ex
planation and reason for the rule. It is uncontradicted on the record,
that about 2 or 3 days before the rule was posted, Armstrong,
Gregory's partner, reprimanded employee Smedley for neglecting his
work in order to go to a nearby store whereupon Smedley stated "he
4 N.L.R.B. v. W. C. Nabors, supra, and N.L.R.B. v. Newton Co., 236 F. 2d 438, 443-444,
where the Fifth Circuit reaffirmed its decision in Nabors above, that it is within the
province of the Board to draw such inferences. See also N.L.R.B. v. Chicago Steel
Foundry Company , 142 F. 2d 306, 308 (C.A. 7) ; N.L.R.B. v. Holtville Ice & Coal Storage
Co., 148 F. 2d 168, 170 '(C.A. 9) ; N.L.R.B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163, 174
(C.A. 7) ; N.L.R.B. v. Sifers Candy Company, 171 F. 2d 63, 66 (C.A. 10).
HOMER GREGORY CO., INC. 1845
would go any time he damned pleased." Armstrong repeated this to
Gregory and it was decided that if the Respondent wasn't "to go
broke with men being off the job," they should post a' notice that
employees could not leave their jobs during working hours. The dis-
charge of Curtis for violation of the rule took place a few days later
under the following circumstances :
Curtis, like the other union men, had been reduced from S to 5
hours. Gregory obtained a part-time job for him hauling logs of an
independent logger and promised to buy any logs Burrows, a non-
employee and son of his foreman, and Curtis, would cut and deliver.
On the date of his discharge, Curtis drove his own truck with his
cut logs to Respondent's premises, parked the truck, in line, on an
off premise road, and reported for work. Sometime later he left his
job to go up on the road, pulled his truck in ahead of other waiting
trucks and unloaded some of his logs. The Trial Examiner found
that Armstrong who was working nearby saw him and did nothing.
We find this to be erroneous as Curtis himself testified that after he
returned to work Armstrong came to him, put his arm on his shoulder
and told him "he had made a mistake." Curtis told Armstrong he
hadn't intended to make a "mistake," whereupon Armstrong said
"well, you left the job and went up on the road and got your truck."
Curtis said he was sorry. Subsequently, Curtis again left his job
which was to keep the sawyer supplied with logs and caused the mill
to shut clown. He was absent about 20 to 30 minutes unloading his
own logs. On his return, Armstrong discharged him for violation of
the rule pertaining to the leaving of work. Curtis testified he knew
of the rule.
Contrary to the Trial Examiner's finding of a lack of warning to
Curtis, we find, from the admission of Curtis himself, that he had
been specifically reprimanded by Armstrong for leaving his work,
that he disregarded the reprimand and left a. second time, causing
the mill to shut clown, whereupon he was discharged. We also find,
contrary to the Trial Examiner, that the rule was valid and not im-
posed to hinder union activities.
We therefore find that the Respondent did not violate Section
8(a) (1) by imposing the rule forbidding employees from leaving
work and did not violate Section 8(a) (3) by the discharge of Curtis.
The Trial Exanminer's findings to the contrary are hereby set aside.
4. We agree with the Trial Examiner that the Respondent refused
to bargain in good faith with the Union. On June 27, the Union re-
quested a formal meeting. Not only did the Respondent's attorney
and negotiator, Arnett, state that Respondent was not interested in
signing a contract but subsequently, on October 5, when the contract
was agreed on, Respondent prevented the consummation of the agree-
1846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment by refusing to sign it unless the Union withdrew the charges
herein, the imposition of such a condition being clearly unlawful.5
Moreover, the Respondent , as found .by the Trial Examiner, con-
tinued even after the election to engage in various acts of unlawful
conduct, evidencing the Respondent 's opposition to the Union which
culminated in the unilateral reduction in the working hours. Assum-
ing economic justification for the reduction , the failure to notify the
Union of the contemplated step was nevertheless in derogation of the
obligation to bargain collectively with the Union. Where, as here,
conduct is "manifestly inconsistent with the principle of collective
bargaining" (N.L.R.B. v. Crompton-IIighland Hills , Inc., 337 U.S.
217, 225 ), good faith or economic necessity is not available as a
defense.6
We therefore find, in agreement with the Trial Examiner, that
Respondent 's unilateral action in reducing the hours of its employees
was in disregard of the Respondent 's statutory obligation to bargain
with the Union and constituted a violation of Section 8 (a) (5) and (1)
of the Act.' We find also that the ensuing strike was caused by such
unfair labor practices.
5. We agree with the Trial Examiner that the Respondent unlaw-
fully failed and refused to reinstate certain of the unfair labor prac-
tice strikers upon their unconditional request for reinstatement on
August 15 , 1957. However, we find merit in Respondent 's exceptions
to the Trial Examiner 's finding that it unlawfully denied reinstate-
ment to Omer Trent who , Respondent alleges, had engaged in acts of
violence during the strike, of such a nature as to warrant denial of
reinstatement . Though the Trial Examiner found Trent guilty of cer-
tain of the acts charged, he concluded that they were not of sufficient
gravity to warrant a denial of reinstatement . Without setting forth
all the instances of violence against Trent alleged by Respondent or
disturbing any credibility findings of the Trial Examiner with respect
to those acts of violence wherein he absolved Trent of culpability, we,
unlike the Trial Examiner, conclude that the acts of violence found
by him to have been committed by Trent are of sufficiently serious
nature to justify Respondent's refusal to reinstate him. Specifically
we differ froln the Trial Examiner's conclusions in the following in-
5 Clinton Foods, Inc., 112 NLRB 239, 240.
9 Cf. Waterway Terminals Corporation, 118 NLRB 342, where we held that the fact an
employer was motivated by economic considerations and not union animus did not excuse
conduct which had the necessary effect of interfering with its employees ' statutory rights.
Nor are we satisfied that Respondent did not deliberately bypass the statutory bargaining
agent in furtherance of its unlawful campaign against it. However, Respondent's motive
in failing to notify the Union of its contemplated reduction in hours is immaterial, once
it is established that it violated an express provision of the Act. Hill & Hill Truck Line,
Inc., 120 NLRB 101.
7 Tampa Crown Distributors, Inc., 121 NLRB 1622; Fleming Manufacturing Company,
Inc., 119 NLRB 452; Superior Cable Corporation , 116 NLRB 1674 , 1679, enfd . 246 F. 2d
539 (C.A. 4).
HOMER GREGORY CO., INC. 1847
cidents, all of which he found were committed by Trent : (1) with
club in hand, he threatened "to pull Vernon Alred, a nonemployee
(who was attempting to make a delivery across the picket line), out
of his truck, stomp him and damage his vehicle." The evidence shows
that the-pickets finally let Alred cross the picket line after 11/2 hours,
telling him if they let him unload, he was never to come back again;
(2) he stopped employee Razor, threatened him, and made "swiping
motions" with his knife; (3) he halted a nonemployee, Odice Trent,
and struck him after he refused his (Omer Trent's) demand not to
deliver logs to Respondent; and (4) he threw a pop bottle at non-
employee Brewer.
We find the above conduct engaged in by Trent was such as to
justify a denial of reinstatement.8 Accordingly, we shall deny re-
instatement to Omer Trent.
We therefore find that the Respondent on August 15, 1957, violated
Section 8(a) (3) and (1) of the Act by its failure and refusal to re-
instate the following striking employees:
Joseph Smedley James Oather Stevens
Linden Jones Gilbert Quisenberry
Burness Buckner Sammie Crager
Ivis Saul Black James Wayne Law
THE REMEDY
The Trial Examiner recommended the reinstatement of Curtis and
all the unfair labor practice strikers who had not been reinstated.
As we have found Curtis was discharged for cause, we shall not order
his reinstatement. Likewise we shall exclude Omer Trent for the
reasons stated above herein. The Trial Examiner included David
Brown as a striker entitled to reinstatement. We shall not order him
reinstated as it is clear from the record that Brown had quit his em-
ployment before the strike and had not applied for reemployment be-
fore the strike. We therefore find he was not an employee at the time
of the strike and not entitled to reinstatement.
s The American Tool Works Company , 116 NLRB 1681 ; Talladega Foundry & Machine
Company, 122 NLRB 125 : see also Morris Fishman & Sons, Inc., 122 NLRB 1436. Be-
cause the acts detailed above are sufficient , without more , to warrant our finding, we deem
it unnecessary to add thereto other verbal acts of name calling or use of "unprintable
language" found by the Trial Examiner to have been committed by Trent and we express
no opinion thereon except to state that our failure to pass on them is not to be under-
stood as condoning such language in connection with picketing activities or approval of
the Trial Examiner's characterization of them as the "ordinary customary verbal picket
line incidents of very slight importance ." See The American Tool Works Company, supra,
where the Board sustained a denial of reinstatement because of the use of profane
language by pickets.
We further find it unnecessary to pass upon whether the whittling by Trent and others
while on the picket line constituted further evidence of proscribed violence . In the case
of Trent such a finding would have but cumulative effect. As to the remaining pickets,
the Respondent has effectively waived any objections it may have had to such conduct.
1848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is the Board's customary policy to direct a respondent employer
to restore the status quo where it has taken unlawful discriminatory
action to the detriment of its employees.' Here the Respondent had
unilaterally reduced the hours of its employees, creating two 5-hour
shifts. Had there been no discrimination we would require Respond-
ent to reinstate the employees to the same shifts they had been work-
ing before the strike. But as we have found the selection of the
employees to have been discriminatory, such an order would perpetu-
ate the very act we have found to be a violation.
If the employees on July 14, 1957, had not gone on strike but merely
filed an unfair labor practice charge, based on the discriminatory
selection of union employees for the reduction, we would, in line with
our customary procedure, have ordered the Respondent to restore
them to their original positions. We see no reason herein to vary
from such procedure merely because the employees exercised their
right to strike against the unfair labor practices of the Respondent.
To hold otherwise would be to penalize them for exercising that right
as guaranteed in Section 13 of the Act.10 Nor would any order of the
Board less than a full restoration order prevent Respondent from
enjoying the fruits of its unfair labor practice. We therefore find
that an order requiring Respondent in reinstating the remaining
strikers to restore to them the full 8 hours a day worked by them prior
to June 10, is warranted herein to fully remedy the unfair labor prac-
tice committed by Respondent."
We shall therefore order that Respondent reinstate all striking em-
ployees to their former or substantially equivalent positions restoring
to them the terms and conditions of employment enjoyed by them
prior to June 10, 1957, without prejudice to their seniority or other
rights and privileges, dismissing or terminating, if necessary, any em-
ployees hired or transferred in Respondent's employ after July 14,
1957, to replace them. If after such dismissal or other disposition of
such replacements, there are insufficient positions available to said
strikers, the available positions shall be distributed among them, on
the basis of seniority or such other nondiscriminatory practice as may
have heretofore been applied in a reduction in force in Respondent's
business. Thereafter, the employees for whom no employment is
immediately available shall be placed on a preferential hiring list.
u Langlade . Veneer Products Corp., 118 NLRB 985, 988; Armstrong Cork Co. v.
N.L.R.B., 211 F. 2d 843, 947-948 (C.A. 5.) ; if. C. Mahon, 118 NLRB 1537; Drennon
Food Products Co., 122 NLRB 1353.
10 Section 13 provides that
Nothing in this Act, except as specifically provided for herein, shall be construed so
as either to interfere with or impede or diminish in any way the right to strike, or to
affect the limitations or qualifications on that right.
11 See cases cited in footnote 9, supra. Nothing contained herein shall be construed to
prohibit or prevent Respondent, at some future time, from reducing the hours of its
employees for nondiscriminatory reasons.
HOMER GREGORY CO., INC. 1849
We shall also order that Respondent make whole the employees
who are entitled to reinstatement for any loss of pay suffered by
reason of Respondent's refusal or failure to reinstate them, by pay-
ment to each of them of a sum of money equal to that which he would
have earned as wages, on the basis set forth above, during the period
from August 15, 1957, to the date of Respondent's offer of reinstate-
ment, such loss to be computed in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289.
We find merit in the General Counsel's exceptions to the Trial Ex-
aminer's failure to grant back pay from June 10 to July 14, by reason
of the reduction in hours of employees who we have found were dis-
criminatorily selected for the reduction. We shall therefore require
Respondent make whole the employees listed in Appendix B (includ-
ing Curtis from the period from June 10 to July 3, the date of his
discharge) by payment to them of a sum of money amounting to
3 hours' pay for each day worked by them from June 10 to July 14,
1957.11
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, Homer Gregory
Co., Inc., Morehead, Kentucky, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in, or activities on behalf of, United
Brick and Clay Workers of America, AFL-CIO, or any other labor
organization of its employees, by discriminating in regard to the hire
and tenure of employment of its employees, or by discriminating in
any other manner in regard to any term or condition of employment,
in violation of Section 8(a) (3) of the Act.
(b) Refusing to bargain collectively with the aforementioned
Union as bargaining representative of all production and maintenance
employees at its plant, Morehead, Kentucky, exclusive of the office
clerical employees, professional employees, guards, watchmen, and
supervisors, as defined in the Act, and from making unilateral changes
in working hours or other terms and conditions of employment with-
out consulting and negotiating with the Union or otherwise derogat-
ing from the statutory authority of the Union, and from refusing to
execute any collective-bargaining agreement unless the Union with-
draws any unfair labor practice charges pending before the Board.
(c) Interrogating employees concerning their own membership, or
membership of others, in or activities on behalf of the Union or any
1= The payment of this amount shall be made immediately without awaiting a final
determination of whatever other award some may be entitled to. See Aerovox Corporation,
102 NLRB 1.526, 1540.
1850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a) (1) of the Act, or
threatening them with reprisals of any nature because of such mem-
bership or activities including threats to shut down its operations,
to deny its employees higher wages or other benefits or to reduce their
hours of work.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist United Brick and Clay
Workers of America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid and protection, or to refrain from
any or all of such activities except to the extent 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) Upon request, bargain collectively with the United Brick and
Clay Workers of America, AFL-CIO, as the exclusive bargaining
representative of all employees in the certified unit, concerning rates
of pay, wages, hours of employment, and other conditions of employ-
ment, and if an understanding is reached, embody such understanding
in a signed agreement.
(b) Offer immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges, to all employees listed in Appendix A,
dismissing, if necessary, any person hired on or after July 14, 1957,
or if employment is not available, place such employees on a preferen-
tial hiring list, in the manner set forth in the section of this Decision
entitled "The Remedy" and make such employees whole for any loss
of pay suffered by reason of the Respondent's refusal or failure to
reinstate them, as set forth in "The Remedy" herein.
(c) Make whole immediately the employees listed in Appendix B
whose hours were discriminatorily reduced from 8 to 5 hours on
June 10, 1957, by an immediate payment of 3 hours' pay to each such
employee for each day worked by him from June 10 to July 14, 1957,
as set forth in "The Remedy."
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary and useful to determine the amount of
back pay due and the right to reinstatement under the terms herein.
HOMER GREGORY CO., INC. 1851
(e) Post in conspicuous places at its plant, Morehead, Kentucky,
including all places where notices to employees are customarily posted,
copies of the notice attached hereto marked "Appendix C." 13 Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by it immediately upon receipt thereof, and main-
tained by it for at least 60 consecutive days thereafter. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Ninth region in writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
IT IS FURTHER ORDERED that the 8 (a) (3) allegations in the com-
plaint with respect to the discharge of Bill Curtis, and the refusal to
reinstate Omer Trent and David Brown, be, and they hereby are,
dismissed.
MEMBERS RODGERS and BEAN took no part in the consideration of
the above Decision and Order.
33 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
Joseph Smedley Ivis Saul Black Sammie Crager
Linden Jones James Oather Stevens James Wayne Law
Burness Buckner Gilbert Quisenberry
APPENDIX B
Ivis Saul Black Sammie Crager James W. Law
Other L. Blevins Laffie Cross Gilbert Quisenberry
Lester Brown Bill Curtis Joseph Smedley
Opal Brown Linden Jones James O. Stevens
Russell Brown Ellis Kidd Stanley F. Stephens
Burness Buckner Emerson Kidd Billie Thomas
APPENDIX C
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, we hereby notify our employees that :
WE WILL NOT discourage membership in or activities on be-
half of United Brick and Clay Workers of America, AFL-CIO,
1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any labor organization of our employees, by discriminating in
regard to their hire, tenure of employment, or any term or condi-
tion of employment because of their union affiliation or activities.
`VE WILL NOT interrogate any of our employees regarding their
own or any other employee's union activities, affiliations, or
sympathies in a manner constituting interference, restraint, or
coercion, in violation of Section 8 (a) (1) of the Act.
WE WILL NOT threaten any of our employees that we will close
our plant if they join or assist the Union or threaten to deprive
them of higher wages or other benefits or to reduce their hours
of work.
WE WILL NOT make unilateral changes in wages, hours, or other
terms and conditions of employment Without consulting and
negotiating with the Union, and we will not otherwise seek to
discredit or undermine the bargaining status of the Union or
otherwise refuse or fail to bargain collectively in good faith with
the Union.
WE WILL NOT refuse to sign any collective-bargaining agree-
ment unless the Union withdraws any unfair labor practice
charges it may file with the Board.
TVE WILL NOT in the same or in any other manner interfere with,
restrain, or coerce our 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 col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
engaging in any or all such activities, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act.
IVE WILL bargain collectively, in. good faith, with United Brick
and Clay Workers of America, AFL-CIO, as the exclusive repre-
sentative of all employees in the bargaining unit, described below,
with respect to rates of pay, hours of employment, and other
conditions of employment, and if an agreement is reached, em-
body such understanding .in a signed agreement. The bargaining
unit is:
All production and maintenance enmployees, excluding office
clerical employees and all guards, professional. employees, fore-
men, and other supervisors as defined in the Act, at our plant in
Morehead, Kentucky.
WE WILL offer immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, to the employees listed
HOMER GREGORY CO., INC. 1853
below, dismissing , if necessary , any person hired on or after
July 14, 1957. If after such dismissal, sufficient positions are not
available , we will place the said employees on a preferential
hiring list and will make such employees whole for any loss of
pay suffered by them by reason of our refusal or failure to re-
instate them.
Joseph Smedley James Oather Stevens
Linden Jones Gilbert Quisenberry
Burness Buckner Sammie Crager
Ivis Saul Black James Wayne Law
WE WILL immediately make whole the employees listed below
whose hours of work were discriminatorily reduced by us.
Ivis Saul Black
Other L. Blevins
Lester Brown
Opal Brown
Russell Brown
Burness Buckner
Sammie Crager
Laffie Cross
Bill Curtis
Linden Jones
Ellis Kidd
Emerson Kidd
James W. Law
Gilbert Quisenberry
Joseph Smedley
James O. Stevens
Stanley F. Stephens
Billie Thomas
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named union or any
other labor organization 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. We will not discriminate in regard to hire or tenure of
employment, or any term or condition of employment, against any
employee because of membership in, or activity on behalf of, any
labor organization.
HOMER GREGORY CO., 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
STATEMENT OF THE CASE
Upon a charge filed by United Brick and Clay Workers of America , AFL-CIO,
hereinafter referred to as the Union , the General Counsel of the National Labor
Relations Board, herein called respectively the General Counsel1 and the Board,
'This term specifically includes the attorney appearing for the General Counsel at
the hearing.
1854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued its com-
plaint against Homer Gregory Co., Inc., herein referred to as the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5),
and Section 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat.
136, herein called the Act. Copies of the charges and the complaint together with
notice of hearing thereon were duly served upon the Respondent and the Union.
The Respondent duly filed its answer admitting certain allegations of the com-
plaint but denying the commission of any unfair labor practices.
Pursuant to notice a hearing thereon was held at Morehead, Kentucky, from
February 3 through February 7, 1958, inclusive, before the duly designated Trial
Examiner. All parties appeared at the hearing, were represented by counsel or
representative and afforded full opportunity to be heard, to produce, examine and
cross-examine witnesses, to introduce evidence material and pertinent to the issues,
and were advised of their right to argue orally upon the record and to file 'briefs
and proposed findings and conclusions or both. On or before March 31, 1958,
briefs were received from the Respondent and the General Counsel.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the Respondent admitted, and the Trial Examiner finds,
that Homer Gregory Co., Inc., is now, and at all times material has been, a
Kentucky corporation engaged in the cutting, milling, processing, and sale of lumber
with its principal office and place of business at its plant in Morehead, Kentucky.
During the 12-month period last past, prior to the opening of the hearing, which is
representative, the Respondent sold, shipped, and delivered from its plant in
Morehead, Kentucky, directly to points and places outside the State of Kentucky
goods valued in excess of $100,000.
The Respondent is, and at all times material herein was, engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brick and Clay Workers of America, AFL-CIO, is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The Respondent operates a small sawmill in Morehead, Kentucky, specializing in
the manufacture of rough commercial hardwood lumber. During the good operat-
ing season, March to November or December of each year depending upon the
state of the weather, the Respondent customarily operated two 8-hour shifts with a
complement of 27-28 employees while during the bad weather months the plant
would operate one 8-hour shift with a complement of 15-16 employees. In addi-
tion, in order to obtain logs for the sawmill operations, the Respondent also ran
2 logging operations in nearby Morgan and Lewis Counties totaling about 11 loggers.
In early April 1957,2 Homer Gregory, Respondent's vice president and general
superintendent, called a meeting of most of the employees on the two shifts then
operating the sawmill .3
Gregory testified that he and Clester Armstrong, his partner in the operations of
the Respondent's plant, decided to call this meeting after Gregory learned from
employee Omer Trent, a tractor-trailer driver for the Respondent, that the employees
were "getting up a union" in the plant largely because of dissatisfaction with the
recent employment of Ewell Razor as a foreman and from employee Merrel Hatton 4
that he and fellow employee Ellis Kidd had had cross words when Kidd attempted
2 All dates in 1957 unless otherwise specified herein.
a Apparently Gregory intended all the sawmill employees to be In attendance but it Is
clear that some few of the employees were never notified of the meeting and consequently
.did not attend.
4 Sometimes spelled Hutton in the transcript.
HOMER GREGORY CO., INC. 1855
to solicit Hatton to join the Union.5 As a result of this information Gregory
promptly laid off Razor and subsequently called a meeting of the employees at
the plant.
Gregory opened this meeting by saying that he had heard rumors that the men
were talking about joining a union, that while each employee had to think only of
his own family, Gregory had to think of not only his own personal family but also
the 30 families whose fathers were employed at the plant. Then his emotion got
the better of him and Gregory broke down in tears so that Armstrong had to take
over the chairmanship of the meeting. Among other things which Armstrong
admittedly said during this i to 1'/z hour meeting was that "if we was forced to pay
high union wages and sell our products on a non-union market, which we would be
forced to go out of business and secure us a job." Armstrong also admitted having
told the employees that he believed that he and Gregory would be able to secure
jobs paying them more than they were making out of the plant. These admissions
tend to confirm other credible evidence in the record, which the Trial Examiner
believes, that both Armstrong and Gregory let it be known to the employees during
this meeting that there was to be no union in the plant and that, if the attempt to
organize was persisted in, Gregory and Armstrong would close the plant down and
seek jobs for themselves elsewhere.6 During the course of this meeting the em-
ployees were requested to make any suggestions they might have as to correcting
any existing grievances. Employee Bill Curtis spoke up and stated that he thought
things would be better if the Respondent would "equalize the wages of all of the
employees instead of having some of them at $1.10 per hour while others received
only $1." Armstrong answered this suggestion by saying that he "had been work-
ing on" the idea of equalizing the wages as suggested.
About the last of April or the first of May the employees in disregard of the
stated wishes of their employer sought out the Union, and secured membership
application cards which some 27 of the employees promptly executed.
On May 8, the Union and the Respondent signed a consent-election agreement
covering a unit of "all production and maintenance employees of the Respondent at
its plant located in Morehead, Kentucky, excluding office clerical employees 7 . . .
etc., and providing for an election to be held on May 21.
Soon after signing union application cards, the employees began to hold union
meetings on Saturday afternoons in the county courthouse in Morehead where
Armstrong on several occasions drove past as the employees were lounging about in
front of the courthouse awaiting the commencement of the meeting .8
On the Monday following the first union meeting at the courthouse Gregory
asked employee Quisenberry if he had gone to the union meeting the previous
6 This report, as testified to by Gregory, appears somewhat inconsistent with the ad-
mitted fact that, while the employees had been talking among themselves about the
possibility of organizing, it was not until sometime after the meeting that they actually
went to the Union and signed application cards.
O Respondent's brief tends to corroborate the above findings when it says : "Counsel
for the Respondent would not be understood for a moment as contending that these re-
marks made by Gregory and Armstrong were not intended by them to show opposition to
the organizing union . Of course they were." [Emphasis in original .] Counsel then
defends the statements made on the ground that no threats or promise of benefits were
contained therein. However, Armstrong's own testimony, quoted supra, proves that the
threat to close the plant and get better paying jobs elsewhere noted in the testimony of
numerous of the employee witnesses was in fact made. The only difference between the
Armstrong testimony and that of the other employees was Armstrong's attempt to connect
"high union wages" [for which there had been at this time no demand made] and the
closing of the plant. From the other testimony elicited about the statements of Armstrong
and Gregory at this meeting, as well as subsequent events and statements, the Trial
Examiner is convinced and, therefore, finds that both Armstrong and Gregory threatened
the employees with the closing of the plant if the employees persisted in their attempt to
organize.
7 There is no mention in this agreement of the Lewis and Morgan Counties logging
operations. From the fact that the loggers were not employed at the plant of the
Respondent located in Morehead, it is obvious that the loggers were never included within
the appropriate unit.
s The Trial Examiner makes no finding that on these occasions Armstrong was keeping
the meetings under surveillance because Highway 60 on which Armstrong was traveling
is practically the sole means of entrance to or exit from the city of Morehead and runs
directly in front of said courthouse.
1856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturday and, after Quisenberry admitted that he had attended, Gregory wanted to
know what had happened there. After receiving a noncommittal answer, Gregory
stated "I will tell you one thing, we are not going to have a union in here . you
can tell them" and that, if the employees persisted, he, Gregory, would allow the
plant to "rust down."
During the period of time between the commencement of the organizational talk
among the employees and the holding of the election on May '21 Gregory on
numerous occasions told employee Omer Trent and Mrs. Trent, both of whom
Gregory at that time considered to be antiunion, that: He would not have a union
at his plant; he would not operate under a union telling him how to run his business;
he would go out of business first and set up a plant in the "bottom" and operate
that; he and his family would sell the sawmill, that he had a lot of insurance on
the mill and would not care if it burned down; and he would close the plant before
he would work under a union and let it rust or rot down. In fact Gregory attempted
to make arrangements with Trent whereby Trent would haul the lumber produced
by Gregory if and when the Union got into his sawmill.
When Trent mentioned the hiring of Ewell Razor as one of the causes of dis-
satisfaction among the employees causing them to consider unionization, Gregory
promptly laid Razor off.
Shortly thereafter Armstrong informed Trent that there absolutely was not
going to be a union in the plant because he intended to bring in the loggers work-
ing in Lewis and Morgan Counties in order "to out vote" the Union and that his
"daddy-in-law" would be "prepared" for the election and that he "could take this
bunch of men seven deep".-which caused Mrs. Trent, overhearing the remark, to
fear the possibility of physical violence at the election.
The election was held as scheduled on May 21 at the company office. The elec-
tion scheduled for from 2 to 3 p.m. was marked by a mixup in time caused by the
fact that the city of Morehead was operating on central daylight saving time while
the Respondent's plant operated on central standard time so that Bellew, the union
representative, did not arrive at the election until 2:20 p.m. during which period of
time all the union adherents gathered in front of the Company's office and refused
to vote while some 11 loggers from Morgan and Lewis Counties voted without
objection in the absence of a union observer at the election. After Bellew had
arrived, the plant employees voted. Even counting the votes of the loggers the
election resulted in a 26 to 20 vote in favor of union representation. Within 5 days
thereafter the Respondent filed objections to the conduct of the election with the
Regional Director.
Following the election Gregory told Ival Thomas, one of the union organizing
committee, that he was protesting the election and that "there would be another
election and that I [Thomas] had better open up my eyes for him and Booge
[Armstrong] was the ones paying us and Hobert Thomas, Oather Blevins, Billy
Thomas [other members of the union organizing committee] and Earl Bellew was
not going to operate that plant or run it" and added "you would be making more
money if it wasn't for the Union."
About that same time Armstrong informed Trent that he, Armstrong, had planned
to give the employees a week's vacation with pay but that " since they got the Union
they got nothing."
Employee Sammie Crager was told by Gregory that there would be another elec-
tion and "the boys around here better get their eyes open or they ain't going to have
no job." Likewise Gregory told employee Ellis Kidd that there would be another
election, that Kidd "had better open up his eyes" and "not let 3 or 4 men cause
him to lose his job," and that Earl Bellew was never going to run the plant be-
cause Gregory would "shut her down" and "let her rust down" first. Thereafter
Gregory informed Kidd that he, Gregory, know that Kidd was "on the other team." 9
At approximately this same time Gregory asked employee Black what he thought
about the Union and, after getting a reply that he had not thought much about it,
stated "don't tell me you didn't think too much about it. You voted for it the
other time . you think you are working hard now-wait until a little later
on . you had better open up your eyes and vote right . . . before I see a union
come in , I will let it rust down."
Following the election Gregory told Trent that he had been surprised at the way
the employees turned out and voted, that "either Ellis Kidd or Grant Strange [em-
ployees] crossed him up in the voting," that he knew who had voted for and against
O As noted hereinafter Gregory was mistaken on this.
HOMER GREGORY CO., INC. 1857
the Union' and named those who had voted against the Union listing Trent as one
of those votes.10
At this same or a subsequent conversation Gregory also informed Trent that he
had contested the election and, "it will be a year before there will be another vot-
ing . and I will have every man fired by that time that voted for the Union,
and I will fill it up with new men. And I will make sure they are not for the
Union for I will make them buy a $1 share in stock so that they can't organize
a union."
On June 10 all the employees received slips of paper from the Respondent setting
forth new hours of work. Respondent suddenly changed its operations from two
8-hour shifts to two 5-hour shifts. Under these new assignments of work hours all
of the employees whom Gregory thought had voted for the Union including Ellis
Kidd were cut from 8 hours to 5 hours per day while all those whom Gregory had
named as having voted against the Union were, on the other hand, increased from
8 to 10 hours per day.
A few days after this cutback in hours James Stevens, in the presence of Ellis
Kidd and Ival Thomas, inquired of Gregory "why are the union men cut to 5 hours
and the newer hands getting 10 to 12 hours?" Gregory answered "Well, that is
what Earl Bellew done for you. He is liable to cut you down to 2." Gregory
also informed Omer Trent that "I have cut the union men down to 5 hours and
they can't draw unemployment." Mrs. Trent heard this or another remark by
Gregory as that he "had cut the union men down to 5 hours a day and said that if
that didn't starve them out he was going to cut them to 2 hours per day, just enough
so they couldn't draw unemployment" because he "meant to starve them out."
These two explanations together with the earlier threat made to cut hours be-
cause of the Union were the only explanation of the hour changes made by the
Respondent until the hearing when the Respondent for the first time advanced an
economic theory as the motivation for the change which will be discussed hereinafter.
On June 17 the Regional Director overruled the Respondent's objections to the
election and certified the Union as the bargaining agent for the employees on the
basis of the results of the election of May 21.
Two weeks later on or about July 1, the Respondent posted a notice above the
time clock. Although requested and available, this notice was never produced at
the hearing. All testimony indicated that said notice promulgated a set of new
rules governing employee behavior. For instance, the notice apparently required
a doctor's report to excuse an absence from work. The record indicates that such
had never been required before. The notice also prohibited employees from going
to the nearby store for pop, cigarettes, etc., during working hours which had been
a recognized customary practice theretofore. As noted the exact phraseology of
these new rules is not before the Trial Examiner despite his request therefor at
the hearing.
On July 3 employee Bill Curtis, who had been told by Gregory shortly after the
cutback in hours that the Respondent would buy all the 8-foot logs which he and the
son of one of the Respondent's foremen, Gerald Burrows, were able to produce, was
at work turning logs for the sawyer at the plant. Curtis also had a truckload of
logs parked by the plant which he and young Burrows had cut awaiting to be un-
loaded. In the latter part of the afternoon Curtis left his job turning logs and drove
his truck into the yard where he unloaded 8 to 10 logs onto the log skid so that they
could be cut. There was no interruption of mill activities at this time. Armstrong
witnessed the proceeding but said and did nothing. Curtis returned to his job.
Subsequently that afternoon, just as the skid was emptied of logs for sawing, Curtis
returned to his truck and unloaded the remainder of the logs left on his truck. After
Curtis had unloaded the remainder of his logs, which took less than half an hour
and as he was returning to his work, Armstrong called him and discharged him
purportedly for leaving his work station during working hours under the new rules
posted 2 days theretofore.
On this second occasion, although there is a dispute as to the cause, apparently
the sawyer did cease work. Curtis maintained that cessation was due to the fact
that the sawyer had to change his band saw. The sawyer denied this and indicated
that the cessation was due to the lack of logs in the skid.
10 This enumeration was practically a mathematical certainty in such a small plant.
However Gregory miscalculated in counting Trent's vote as having been cast against the
Union whereas, in fact, it had been cast for the Union so that both Kidd and Strange had,
in fact, voted against the Union.
508889-60-vol. 123-118
1858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 27 Earl Bellew telephoned Baxter Arnett, attorney for the Respondent,
asking for an appointment at which to negotiate a contract with the Company and
was told by Arnett that his client was not interested in talking to the Union about
a labor contract. However, a meeting was arranged for July 13 with the Union
sending Respondent its proposed contract prior thereto.
On July 13 Bellew and the union negotiating committee of Ival and Hobart
Thomas, James and Stanley Stevens, and Other Blevins sat down across the nego-
tiation table from Gregory, Armstrong, and Attorneys Arnett and Townsend and
went over the clauses contained in the proposed contract. Nothing more was
accomplished.
Either that same evening or the following evening the union employees held a meet-
ing at the nearby town of Clearfield and voted to go on strike because of the cut
in hours, the discharge of Curtis, and the numerous threats made by the Company
"to let us down in the Union came in." On July 15 the union employees began
picketing the Respondent's plant and the strike was on.
On the very first morning of the strike Gregory told pickets Stanley Stevens,
Ellis Kidd, and Hobart Thomas that "I reckon you boys know when you walks out
of here, you got no more job." Although Gregory denied having made the above-
found statement, he admitted to having told these pickets "boys, looks like you got
done." The Trial Examiner can discern little, if any, difference in meaning between
the two versions of this statement. Both indicate that the strikers had lost their
employment because of their concerted act of striking.
On August 15 Bellew and the union organizing committee notified the Respond-
ent that the strike was over and that the employees were ready and able to return to
work. Gregory stated that he would have to consult his attorneys. It was stipu-
lated that all of the striking employees reported to the Respondent for work with a
written statement to the effect that they were ready and able to return to work.
A number of the striking employees were in fact recalled to work within a week.
Some have yet to be recalled.ii
Following the meeting of July 13, further negotiation meetings were held on
July 20 and 27, August 17 and 24, and the final meeting was held on October 5.
The October 5 meeting was a short one. With the terms of the contract practically
agreed upon, the talk at the negotiating table turned, for the second time at least,
to the Respondent's demand as voiced by Townsend that, in order for the Respond-
ent to sign a contract with the Union, the Union must drop the unfair labor practice
charges previously filed by it against the Respondent. Townsend in effect ended
this meeting by stating that so long as the Union had unfair labor practice charges
pending before the Board against the Respondent, the Respondent just would not
or could not sign a contract and that it would do no good to continue the contract
talks with unfair labor practice charges pending. On that note the negotiation
meetings ended and have never since been resumed.
B. Conclusions
1. Interference, restraint, and coercion
Under the facts as testified and found above, there can be no question but that
the statements of Gregory and Armstrong regarding the closing of the plant, the loss
of vacation and higher wages, the possibility of loss of employment, the reduction
in hours of the union employees, and the posting of the more onerous working rules
containing, as they do, both threats and promises of benefit amounted to inter-
ference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act.
However, in its brief, the Respondent argues that the General Counsel had failed
to prove this phase of his case by the preponderance of the evidence. The Trial
Examiner cannot agree.
It is true that Gregory and Armstrong in general, and in many instances specifi-
cally, denied with a single negative having made the statements found heretofore
upon the credited testimony of numerous of the Respondent's employees. In a few
instances both Gregory and Armstrong discoursed beyond the single negative, and,
in each instance when they did, they each in effect corroborated the testimony of
the witnesses for the General Counsel which they had just previously denied. For
instance, Gregory acknowledged having told the strikers on the first day of the
11 Although the Respondent produced evidence of alleged misconduct as to several of
the strikers, it is clear from the Respondent's brief that, in line with the evidence ad-
duced, the Respondent has now restricted its charge of serious strike misconduct to
employee Omer Trent alone. This charge will be considered subsequently in this report.
HOMER GREGORY CO ., INC. 1859
strike that "it looked like they had got done" which was essentially the same remark
he had just previously denied having made and , for a second instance , Armstrong
first flatly denied having threatened the assembled employees with the closing of the
Respondent 's plant but in the very next answer admitted having told them that he
was sure that both he and Gregory could and would get better paying jobs else-
where if the employees succeeded in organizing the plant . In other words, the
Respondent 's explanations , when given , in essence corroborated the fact that they
had made the statements attributed to them by witnesses for the General Counsel
and found above.
Furthermore , in order to credit the monosyllabic denials of Gregory and Arm-
strong, it would be necessary to -find that each and every one of the many witnesses
produced by the General Counsel was deliberately falsifying his testimony. With
one possible exception the demeanor of the General Counsel 's witnesses on the stand
belied any such possible conclusion . Consequently the Trial Examiner was con-
vinced 'by the demeanor of the witnesses for the General Counsel, by the admissions
made by Gregory and Armstrong , and by undeniable facts in the record that Gregory
and Armstrong interfered with , restrained , and coerced the Respondent 's employees
by threatening them and by impliedly promising benefits to the employees if they
would abandon their attempt at union organization.
Even as the Respondent 's brief acknowledges , supra, the Respondent actively
opposed any thought of organization among its employees . The Respondent had a
definite animus against such concerted activity. It made this plain to the employees
at its meeting early in April. It made it plain by all its actions thereafter. It is
hard to believe that either Gregory or Armstrong was able to refrain from making
that same animus plain in their verbal communications with the employees. In
fact the Trial Examiner is convinced that they did not so refrain.
At the hearing for the first time the Respondent defended its action in reducing
the union employees to 5 hours per day on the ground that such reduction was
economically required , because "the bottom" fell out of the Respondent 's orders only
2 or 3 weeks prior to June 10, the date the reduction in hours was in fact effectuated.
Prior to that time the only explanation ever given by the Respondent had been that
the reduction was caused by the union activity or by its organizer , Earl Bellew.
Even if we assume that the bottom actually did drop out of the Respondent's
orders, so that the reduction in hours was , in fact, dictated by the economic situa-
tion, still the fact that Gregory publicly attributed the reduction to the advent of
the union organization and to its organizer , Earl Bellew, must necessarily have been
an act of interference , restraint , and coercion on the part of the Respondent and,
therefore , a violation of Section 8(a)(1) even though Gregory's stated explanation
to the employees and to the Trents was factually false because the explanation
coupled with the reduction in hours was reasonably calculated and intended to
force the employees to withdraw from the Union. This is especially so, due to
Gregory's own emphasis on the fact which was indeed the fact, that only "union
men" had been reduced in hours as well as the statement that he intended to "starve
out" the union men, even if he had to reduce them to 2 hours per day.
But on the factual issue as to whether the reduction was in fact economically
motivated, we have on one side Armstrong's flat statement on the witness stand that
2 or 3 weeks before the reduction , the "bottom dropped out" of the orders coupled
with the names of a few customers . On the other hand the record shows that (1) at
no time before the hearing did the Respondent ever attribute the reduction to eco-
nomic reasons ; ( 2) the Respondent was advertising over the radio for logs and
lumber in order to be able to fill its orders ; ( 3) the Respondent never so far as this
record shows curtailed its logging operations in Lewis and Morgan Counties, which
was being performed by nonunion help; and ( 4) even after the reduction in hours
at the plant , the Respondent still told employee Curtis that it would buy all the
8-foot logs he and young Burrows could cut. Thus undenied facts belie Armstrong's
naked assertion to the contrary.
As the General Counsel had already proved a prima facie case of discrimination
against the union employees in the reduction of hours, the burden of proving the
economic cause for the reduction which would have eliminated the discrimination
fell upon the Respondent . As uncontroverted facts contradicted Armstrong's bald
statement , it appears that the Trial Examiner must hold that the Respondent failed
to sustain the burden of proving that the reduction in hours was caused by economic
considerations . This is especially so in the light of further testimony by Armstrong
that the Respondent has at all times enjoyed a steady growth in business. Further-
more, if the reduction was in fact caused by economic factors, the proof lay within
the Respondent 's power to prove from its books and records. The Respondent's
failure to produce that evidence causes an inference to arise that , if produced, the
books would not have corroborated Armstrong 's flat statement.
1860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly , the Trial Examiner must find that the Respondent reduced the hours
of its known union employees in the plant for the purpose of interfering with, re-
straining , and coercing its employees into abandoning their effort at concerted and
union activities in violation of Section 8 (a) (1) of the Act, rather than because of
any economic motivation.
Furthermore the facts proved in the instant matter require a finding that from
early in April 1957, the Respondent had purposely followed a course of conduct
through all its statements and acts intended to cause, force , and coerce the Respond-
ent's employees into abandoning the Union and concerted activities in violation of
Section 8 ( a) (1) of the Act.
2. The discharge of Bill Curtis
Although the Union had been certified as the authorized bargaining representa-
tive of the Respondent's employees on June 17, and was at the time attempting to
secure a date in order to negotiate a labor agreement with the Respondent, on
July 1, the Respondent by unilateral action without consultation with the Union
posted a notice changing the old and well-established terms and conditions of em-
ployment at its plant in at least two particulars: (1) requiring a doctor's report
to excuse an absence from work; and (2) forbidding the employees the right to go
to the store during working hours.i2
Two days after this posting Curtis, who was regularly employed to turn logs for
the sawyer and who also had been told by Gregory following the reduction in hours
that the Respondent would buy all the 8-foot logs he and young Burrows could cut,
was discharged apparently for violating these newly posted rules in leaving his work
station in order to unload some logs from his truck onto the log skid at the plant,
which was at that time empty of logs. As Curtis was returning to his work station
after unloading the logs, Armstrong stopped him, informed him that he had broken
the rules, and discharged him forthwith.
The strange part of this episode is that a little earlier that same afternoon,
Armstrong had seen-and thought nothing of-Curtis' leaving his work station, go
up on the road nearby where his truck loaded with logs was parked, drive it down
to the log skid, unload about 10 logs therefrom, and returned to his work station.
On this occasion Armstrong saw the whole thing but did nothing about it. The
record indicates that, at least prior to the posting of the notice, Curtis' actions were
in accord with customary procedure.
If leaving one's work station was in fact a violation of the Respondent's newly
posted rules, then it is passing strange that Armstrong 'thought and did nothing about
Curtis' original breach of the rule. It is even stranger that Armstrong acted as he
did on this second alleged breach of the rule because it is admitted by all parties that
the log skid was empty of logs at that time so that, unless Curtis unloaded some
more logs, there was nothing for the sawyer to cut and the mill was bound to come
to a stop.
In addition to its evidentiary value on the refusal-to-bargain charge, the posting
of these new and more onerous rules on employee conduct on July 1 appears to have
been the fulfillment of Gregory's threat that work would be made harder under the
Union and, thus, an integral part of the Respondent's course of conduct aimed at
forcing the employees to abandon their organizational attempt and thus, a violation
of Section 8 (a)( I) of the Act. The Trial Examiner so finds.
Curtis was known to be an adherent of the Union. Curtis had spoken up at the
Respondent's meeting in April suggesting at least the "equalization" of the wage
structure. Gregory had designated him as one of the men who had voted in favor
of the Union contrary to the Respondent's desires.
It was only shortly before July 3 that Gregory had threatened that he was going
to get rid of all those employees who had voted for the Union, before there was
ever another election in the plant. The posting of these new rules was obviously a
step toward the consummation of that purpose. So, even though the continued
operation of the plant required Curtis' second alleged breach of the newly posted
rules, Armstrong suddenly saw the opportunity to prove the coercive effect of the
new rules and to retaliate against an employee who had had the temerity to disobey
the Respondent's expressed wishes and also to fulfill Gregory's threat of getting rid
of the union adherents.
"As noted heretofore, due to the. fact that the Respondent did not produce the actual
notice itself together with the indefiniteness of the,testimony, the Trial Examiner is un-
able to find the exact rule any more definitely than stated above. It is very possible that
the posted rule prevented employees from leaving their work stations during working hours.
HOMER GREGORY CO., INC. 1861
Therefore, it appears that no matter which way one looks at the Curtis discharge,
it must be found that the Respondent discharged Curtis on July 3 either under rules
designed for a discriminatory and coercive purpose or else in order to discourage
union membership and activities and thus, in violation of Section 8(a)(3) and (1)
of the Act. The Trial Examiner so finds.
3. The strike
On July 13 or,14, the Respondent's employees voted at a union meeting to strike
the Respondent's plant in protest against the course of coercive conduct being
followed by the Respondent throughout this period, the discharge of Bill Curtis
which was considered to be an unfair labor practice and because of the unilateral
reduction in hours without consultation with the Union.
The Trial Examiner has heretofore found that this course of conduct followed
by the Respondent was in fact coercive and a violation of Section 8(a)(1) of the
Act, that the discharge of Bill Curtis was in fact discriminatory and in violation of
Section 8(a) (3) and (1) of the Act, and lastly that the reduction in hours was also
discriminatory and thus a violation of Section 8(a)'(1) of the Act. So it becomes
clear that the strike was caused by the unfair labor practices of the Respondent and
in protest thereto so that it must be found that the strike was in fact an unfair
labor practice strike.
4. The refusal to bargain
Very little need be said about the charge that the Respondent refused to bargain
with the Union. There is no question as to the majority status of the Union in
view of the certification -by the Regional Director of June 17, 1957.
The parties sat down and talked about seven or eight times at various times and
places. These talks were preceded by the statement by the Respondent's attorney,
that the Respondent had no interest in attempting to negotiate a contract with the
Union. Despite this inauspicious start the parties did sit down and bargain as
aforementioned with the result that ultimately they were in practical agreement as
to the contents of the agreement to be signed.
However, at the final meeting of October 5 and the preceding one, Attorney
Townsend for the Respondent began talking about the necessity of having the
Union's unfair labor practice charges and the Respondent's State court action dis-
missed as a condition precedent to the signing of any agreement between the
Respondent and the Union. Although the Union talked about the dismissal of
these charges and the case at both these meetings, it objected thereto.
The meeting of October 5 was a short one, consisting almost exclusively of the
statement by Attorney Townsend that the Respondent would not sign any contract
with the Union unless and until the unfair labor practice charges already filed with
the Board were dismissed by the Union. The meeting broke up-and was never
resumed-when Townsend stated that there was no use of talking further about
negotiating a contract unless and until the unfair labor practices then pending before
the Board were dismissed. As a result of this statement the negotiation meetings
were never resumed and consequently no contract has ever been entered into between
the Respondent and the Union.
The charges referred to by Attorney Townsend consisted of charges of violations
of Section 8(a)(1) and (3) of the Act, referring specifically to the coercive course
of conduct entered into by the Respondent and the allegedly illegal discharge of
employee Bill Curtis. Once the charges have been filed by the Union, these matters
became matters of public rights, and not of private rights, over which the Union had
no control whatsoever. Any dismissal of these charges depended exclusively upon
the National Labor Relations Board. Conditioning the execution of a labor agree-
ment with the certified bargaining agent of the employees in the appropriate unit
upon the dismissal by that labor union of unfair labor practice charges filed against
the Employer, matters which deal with public and not private rights, constitutes a
refusal to bargain in violation of Section 8(a)(5) of the Act. The Trial Examiner
so finds.
Furthermore the evidence is quite conclusive that from the very commencement
of the negotiations the Respondent was not 'bargaining in good faith in that it indi-
cated from the commencement of the negotiations that it had no intention of bargain-
ing in good faith. When the Union had receded from practically every demand that
it had made so that agreement was at hand, the Respondent resorted to this condi-
tion precedent of requiring the dismissal of all unfair labor practice charges against
it as a condition to the signing of any agreement between the Respondent and the
Union to prevent the consummation of the agreement. It is quite obvious from the
1862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facts that the Respondent had no intention of bargaining in good faith with the
Union. Accordingly, the Trial Examiner must find that the Respondent failed to
bargain in good faith with the Union in violation of Section •8(a) (5) of the Act.
5. Reinstatement of Omer Trent
The Respondent's position regarding the possibility of reinstatement of the strikers,
and especially of Omer Trent, was set forth in the Respondent's own brief as follows:
4. REFUSAL TO REINSTATE OMER TRENT
We come now in the concluding section of this brief to a consideration of
Respondent's failure to reinstate Omer Trent-the man with the sardonic
smirk. Despite the fact that its striking employees generally were guilty of so
much lawlessness that Respondent had to go to Court and obtain an injunction
against them, Respondent, at the end of the strike, took back as many former
strikers as it could employ in view of the retarded condition of its business and
is on record (OR, 707) that it will call up, with one exception, all the others
according to seniority whenever additional employees are needed. That excep-
tion is, of course, Omer Trent, who will never be re-employed by Respondent
until and unless a court of last resort compels it.
Omer Trent, as this record shows, was the leader of the strikers. His home
was their rendezvous. He was the chief advisor, HEAD DEVIL, and HIGH
PRIEST of the gang of pickets that tried to destroy Respondent's business.
Personally and individually:
(a). Omer Trent crept from ambush and threw a pop bottle at the head of
truck driver, Brewer;
(b). Omer Trent, club in hand, threatened to pull Vernon Aired out of his
truck, stomp him and damage the vehicle;
(c). Omer Trent halted Odice Trent and struck him IN THE FACE WITH
HIS FIST;
(d). Omer Trent stopped Ewell Razor, threatened him and made "swiping
motions" with an open knife;
(e). Omer Trent hurled unprintable language at Paul Reynolds for pick-
ing up roofing nails planted by the union in Gregory's drive-way;
(f). Omer Trent threatened Osil Switzer's son;
(g). Omer Trent threw rocks at Roy Switzer and Armstrong as they picked
up nails in drive-way;
(h) Omer Trent called Roy Switzer a "Yeller Assed son-of-a-bitch."
(i). Omer Trent fires his pistol and yells to Razor and Armstrong, "I ought
to kill you, you sons-of-bitches."
At the hearing the Trial Examiner had understood that the Respondent's position
was that numerous strikers, in addition to Trent, should be barred from reinstate-
mentbecause of picket-line violence. If this originally had in fact been the Re-
spondent's position, the dearth of evidence of alleged misconduct by the others fully
justifies the Respondent's restriction of this position to Trent alone as indicated in
the above quotation. In view of the present position of the Respondent the Trial
Examiner will accordingly restrict his discussion to the Trent case exclusively.
An analysis of this dramatically phrased dossier of Trent's alleged activities on
the picket line indicate that the incidents described fall into .three separate categories.
Incidents (b), (d), (e), (f), and (h), as listed in the Respondent's dossier, are no
more than the ordinary, customary, verbal picket-line incidents of very slight im-
portance. Incidents (a), (c), and (g), containing as they do elements of coercion
and physical violence, if accepted at face value disregarding the denials by Trent
and others on the picket line, are of more importance. Incident (i) regarding the
firing of Trent's revolver definitely could result in barring Trent's reinstatement if
the Respondent's testimony is accepted.
Deplorable and unnecessary as the first group of incidents may be, these inci-
dents are a customary and usual concomitant of any strike and, as such, are in-
sufficient to bar reinstatement. Respondent's incident (b) is perhaps typical. Driver
Aired, a native of Harlan County, Kenutcky, was the witness who testified that
Trent "scared" him by remarking that it would only take a minute to "stomp"
Aired, a silly statement which the Respondent refers to as a "threat." However,
the evidence shows that at the end of 1'/z hours of peaceful conversation with Trent
and the other pickets, Aired drove through the picket line and unloaded his logs at
the Respondent's plant without incident. Aired testified that after unloading he had
HOMER GREGORY CO., INC. 1863
to stop his truck upon leaving the picket line in order to calm his shaking nerves.
Alred's timidity apparently was almost without limit as he expressed fear of physical
harm in the courtroom because of being a witness there and finally attributed his
"fear" at the picket-line incident to the fact that he had never seen men "whittling
in groups" before. The clubs and knives referred to in the Respondent 's dossier
were pieces of wood and pocket knives used by Trent and the pickets for whittling
in order to while away the time on picket duty.
In a number of recent cases this Trial Examiner has been forced to accept a
great deal of testimony regarding whittling on picket lines, apparently on the theory
that whittling on a picket line constitutes violence. Whittling does involve the use
of a knife , a potential weapon of violence , and of sticks of wood, which when re-
ferred to as "clubs," also can be potential weapons of violence. However, both
knives and wood are also necessary elements to the act of whittling , a fine and well-
recognized means of whiling away spare time long enjoyed by innumerably highly
regarded Americans of peaceful mien. Due to possible constitutional objections,
this Trial Examiner has been unable to hold that whittling on a picket line amounts
to picket-line violence per se. There is nothing in the instant case to indicate that
the pocket knives and sticks were at any time being used by the strikers for anything
more than peaceful time -consuming whittling . The Trial Examiner so finds.
As for the second category noted above , Trent denied throwing either the pop
bottle or rock . In this he was corroborated by various strikers. In fact in the
alleged rock-throwing incident involving Paul Reynolds , son-in-law of the Respond-
ent's president who indicated a rather abysmal ignorance of his father -in-law's
financial interest in the Respondent and a former Kentucky State trooper who had
once been arrested for drunkenness and who showed a strange unwillingness to
repeat what he referred to as vile and obscene language, not even Reynolds would
testify to more than that Trent had been in his own yard across the street from
the plant when a rock allegedly landed in the vicinity of Reynolds. Nor did Reynolds
even attempt to eliminate other possible rock throwers from the vicinity. Under
these circumstances no fair fact finder could bar Trent from reinstatement by in-
ferring, over his specific denial, that Trent threw the rock. This is especially so as
Reynold's demeanor on the stand was such as to fail to impress the Trial Examiner
with his trustworthiness either as an observer or a witness.
The alleged pop 'bottle throwing incident was denied by both Trent and other
strikers . In this episode Trent was identified by both the driver of the truck cross-
ing the picket line and by Gregory who, if the truckdriver was telling the truth, was
hardly in a position to have seen the thrower of the bottle ., if any. Either Trent did
not throw a bottle, as he claims, or he was a sufficiently poor shot , or a careful shot,
because no claim was made that the alleged bottle hit the truck , much less the driver.
This episode , at the very least , was grossly exaggerated in the testimony.
Apparently Omer Trent did strike his cousin , Odice Trent , after Odice had refused
Omer Trent 's request that he not deliver logs to the Respondent across the picket
line. Cousin Odice obviously was more surprised than hurt or scared because for
the remainder of the period of the strike Odice continued to make daily deliveries
of logs to the Respondent through the picket line without incident . Such solitary
incidents should not , but will , happen on any picket line.
So now we come to the only really important charge of untoward violence against
Trent: The two revolver shots he admittedly fired coincidental with the backing of
the Respondent 's trailer and low-boy into the Respondent 's driveway with Ewell
Razor driving and Armstrong sitting along side of him in the cab. This incident
the Respondent refers to euphemistically as the "Rat Tale" because Ival Thomas.
Other Blevins, and Mrs. Trent all corroborated Trent by testifying that at Thomas'
suggestion Trent opened the back screen door of his home and shot twice at a rat
gnawing a cob of corn lying in Trent's backyard.
It is admitted that , in order to back the low-boy and tractor into the Respondent's.
driveway, Razor had driven the tractor and low-boy down the Clearfield Road com-
pletely beyond the back stoop of the Trent home preparatory to backing into the
driveway to the Respondent 's plant. Thus , if the Trent story is believed, Trent
shot directly away from the position the tractor and low-boy were in. The Re-
spondent requests that the Trial Examiner infer that Trent fired at the tractor and
low-boy because neither Razor nor Armstrong claimed to see Trent aim or fire at
the equipment and only Razor-not Armstrong-testified to hearing Trent allegedly
say "I ought to kill you two son -of-bitches ," a statement denied by Trent whose
testimony in this regard was additionally confirmed by the then tenants of the Trents_
who were standing talking with a friend on a crossroad not far away from the
incident . No claim was made that shot hit either the trailer , lowboy-or the rat.
It seems to this Trial Examiner that even a modern day Kentuckian ought to be able
1864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hit a trailer-tractor with a revolver shot at a distance of 50 to 75 feet if he were
aiming at it.
Furthermore rats are not unknown in, about, and around lumber mills. The
evidence shows that officials of Respondent had, taken pot shots at rats around the
mill previously and that rats had been known to cross the street into the Trent
property before.
There is one strange feature to this whole "Rat Tale" episode. And that is that
when Razor and Armstrong set forth on the very short trip which culminated in
the backing into the Respondent's driveway, Armstrong for reasons known only to
him surreptitiously carried a revolver into the cab of the tractor with him. When
the backing maneuver into the plant was completed, never having been interrupted
by Trent's shots, Armstrong put his revolver out the cab window and fired six rapid
shots into the air in order, as Armstrong said, to show Trent that he was prepared.
This whole curious episode has all the earmarks of two small boys playing with fire.
But be that as it may, the Respondents' brief writer appears inadvertently to have
explained the Respondent's reluctance to reinstate Trent when, even before listing
the claimed acts of violence attributable to Trent, he wrote the short second para-
graph to the above quotation from Respondent's brief thereby emphasizing the
Respondent's hatred of Trent because of his leadership of the Respondent's organiza-
tional drive and strike. It is to be recalled that Gregory and Armstrong had been
very friendly with Trent-up until the moment they finally discovered that Trent
was for the Union and not "on their team" as they had previously mistakenly be-
lieved. This second paragraph appears to confirm the fact that the Respondent's
eagerness to bar Trent from reinstatement stems from his attitude toward the Union
and his leadership of the strike rather than from the claimed acts of violence. The
Trial Examiner is convinced thereof and so finds.
Under all circumstances existing the Trial Examiner must find that Trent fired at
a rat-and away from the direction of the tractor and low-boy without knowledge of
the presence of the Respondent's equipment until after the shots had been fired.
Furthermore the Trial Examiner must also find that Trent was not guilty of any
such violence on or about the picket line sufficient to bar him from reinstatement.
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 operation of the Respondent described in section I, has a close,
intimate, and a substantial relation to trade, traffic, and commerce among the several
States, and tends to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be • recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act. It will be recom-
mended that the Respondent, upon request, bargain collectively with United Brick
and Clay Workers of America, AFL-CIO, as the duly certified 'bargaining repre-
sentative of Respondent's employees.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of various unfair labor practice strikers on and after August 15,
1957, by refusing said strikers reemployment, and that Respondent discriminated
against Bill Curtis by discharging him on July 3, 1957, the Trial Examiner will
recommend that the Respondent offer to each of them immediate reinstatement to
his former position or a substantially equivalent one without prejudice to his
seniority or other rights and privileges, and make each of them whole for any loss
of pay he may have suffered by reason of said discrimination by payment to him
of a sum of money equal to that which he would have earned as wages from the
date of the discrimination against him to the date of the offer of reemployment, less
his net earnings during said period, in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by the
Respondent in the instant case are such as to indicate an attitude of opposition to
the purposes of the Act generally. In order, therefore, to make effective the inter-
dependent guarantees of Section 7 of the Act, thereby minimizing industrial strife,
which burdens and obstructs commerce, and thus effectuate the policies of the Act,
it will be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
UNIVERSITY LITHOPRINTERS, INC. 1865
CONCLUSIONS OF LAW
1. United Brick and Clay Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees employed by the Respondent at his
plant in Morehead, Kentucky, exclusive of the office clerical employees, professional
employees, guards, and watchmen, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(c) of the Act.
3. At all times since June 17, 1957, the Union has been, and now is, the certified
exclusive bargaining representative of all the employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of Section 9(a)
of the Act.
4. By failing and refusing on, and at all times since, October 5, 1957, to bargain
collectively with United Brick and Clay Workers of America, AFL-CIO, as the
exclusive bargaining representative of the employees in the aforesaid appropriate
unit, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) and (1) of the Act.
5. By discharging Bill Curtis on July 3, 1957, and by refusing to reinstate the
unfair labor practice strikers listed on Appendix A upon request on August 15,
1957, thus discriminating in regard,to their hire and tenure of employment, thereby
discouraging membership in Brick and Clay Workers Union of America, AFL-CIO,
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.
6. 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)( I).
7. 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.]
University Lithoprinters , Inc., Petitioner and Detroit Bindery
Workers ' Union No. 20, International Brotherhood of Book-
binders, AFL-CIO and Amalgamated Lithographers of Amer-
ica, Local 9. Cases Nos. 7-RM-255 and 7-8111-258. June 06,1959
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
William P. Daniel, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
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 [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. Case No. 7-RM-255: On November 22, 1957, the Employer en-
tered into a contract with Detroit Bindery Workers' Union No. 20,
International Brotherhood of Bookbinders, AFL--CIO, herein called
the Bindery Workers, which by its terms was to be effective from
123 NLRB No. 213.