J. A. Hackney & Sons, Inc.

National Labor Relations Board - Board Decisions

May 21, 1969

176 N.L.R.B. 63 (N.L.R.B. 1969)

J. A. HACKNEY & SONS
J. A. Hackney & Sons, Inc. and International
Chemical Workers Union , AFL-CIO. Case
l 1-CA-3682
May 21, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On January 24, 1969, Trial Examiner Benjamin
K. Blackburn issued his Decision in the
above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursue nt to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision,' the exceptions and the brief,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner insofar as they are consistent
herewith.
We affirm the Trial Examiner's conclusion that
Respondent violated Section 8(a)(3) of the Act by
discharging 41 employees. We believe that the
decision to reduce the work force was motivated by
the recent union activities of his employees and not
by Respondent's economic straits.' We agree with
the Trial Examiner's finding of union animus, as is
clearly shown by the independent 8(a)(1) violations
found by the Trial Examiner, which we are herein
adopting. We further find that the Section 8(a)(1)
violations were closely related to the mass discharge
and constitute substantial evidence as to the motive
of Respondent for effecting the discharge.
Respondent manufactures steel and aluminum
truck bodies for the beer and soda industry.
Beginning February 1, the entire glass industry was
shut down by a strike, which ended in the latter part.
of March 1968. It is undisputed that Respondent's
sales were adversely affected by the strike.
'As noted by the Respondent , the Trial Examiner erred in finding that
backlog on April 23, 1968, was $1 ,169,539. However , this does not affect
our decision herein.
'We find it unnecessary to rely on the Trial Examiner' s apparent further
finding that there was a discriminatory selection of the employees
discharged.
63
After the Union began the organization of
Respondent's production and maintenance
employees on May 21, 1968, Respondent engaged in
a program of systematic surveillance, making use of
employees Chester Webb and James Edwards, who
furnished Respondent with various lists containing
the names of those who attended union meetings
and who signed union-authorization cards. Webb
testified that supervisor Boyd asked him to go to the
union meetings and remember who attended and
signed union cards. Boyd also interrogated Webb
concerning specific employees. A statement by Boyd
to the effect that "These guys are going to wish that
they hadn't never signed that card", and an implied
threat by James A. Hackney, Jr., Respondent's
president, that he would close the plant in the event
that the union was successful, are further evidence
that the 41 discharges were discriminatorily
motivated. In another instance of surveillance,
foreman Ray Winstead wrote down the names of
those who were wearing union buttons, informing an
employee that the list was to be turned in to James
Hackney, III, the executive vice president and
general manager of Respondent. Respondent also
granted benefits to its employees to induce them to
abandon their union activities.
On May 23, Hackney, III, immediately after
learning of the union organizing campaign,
addressed the employees, and informed them that
the backlog of orders was down due to the strike in
the glass industry, and that if conditions worsened,
hours might have to be cut back as a last resort.
[Emphasis supplied.] A layoff of any personnel was
not foreseen at the time; although Hackney
possessed at that time a sales forecast for the
coming months which proved to be accurate.
On July 11, Hackney III once again addressed the
assembled employees. This time, delivering a
vituperative speech, containing many indirect,
although obvious, references to union supporters, he
announced the termination of employment of 41
employees, adding that he was keeping the men who
pitched in, rather than those who had complained.
Respondent claims that the discharge was directly
attributable to a slowdown in production on the part
of the employees. Close examination of the record
reveals that no such slowdown is evident. Production
per man-hour during the period preceding the
discharge was at least as high as it had been in
previous years for the same period. Thus, we
conclude that the alleged slowdown claimed by
Respondent was merely a pretext.
In view of the foregoing, and upon the entire
record, we find, in agreement with the Trial
Examiner, that Respondent discharged the 41
employees in violation of Section 8(a)(3).
176 NLRB No. 8
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, J. A. Hackney &
Sons, Inc., Washington, North Carolina, its agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a North Carolina corporation, is engaged
in the business of manufacturing truck bodies for the beer
and soft drink industries . It annually ships goods valued in
excess of $50,000 from its plant in Washington, North
Carolina, directly to customers outside the State of North
Carolina. On the basis of these admitted facts, the
complaint alleges , the answer admits , and I find that
Respondent is engaged â–ºn commerce within the meaning
of Section 2(6) and (7) of the Act.
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Trial Examiner: This case
began with the filing of a charge by International
Chemical Workers Union, AFL-CIO, referred to herein
as the Union or the Charging Party, against J. A.
Hackney & Sons , Inc., referred to herein as Respondent,
on July 18 , 1968.' The charge was subsequently amended
on August 5, and again on September 5. On September 23
the General Counsel of the National Labor Relations
Board , by the Regional Director for Region 11
(Winston -Salem , North Carolina) issued a complaint
against Respondent in which he alleged that Respondent
had violated Section 8 (a)(1) and (3) of the National Labor
Relations Act by discharging 41 named employees on July
11 and had violated Section 8(a)(1) by various other acts.
Respondent ' s answer admitted that the employment of the
41 employees named had been terminated but denied the
commission of any unfair labor practices.
Pursuant to due notice , hearing was held before me in
Washington , North Carolina, on November 12, 13, 14,
and 15 . The issues litigated were (a) was Respondent
motivated by economic or antiunion considerations in
deciding to' discharge 41 out of 112 employees on July 11;
(b) if Respondent ' s motive was economic, was it
discriminatorily motivated in selecting the 41 men who
were discharged , and (c ) did various other incidents, if, in
fact, they took place , constitute interference with,
restraint , and coercion of Respondent ' s employees in the
context of the Charging Party 's organizing campaign? All
parties appeared at the hearing and were given full
opportunity to participate , to adduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and
to file briefs . Briefs subsequently filed by Respondent and
the General Counsel have been carefully considered.
Upon the entire record, and from my observation of the
demeanor of the witnesses while testifying under oath, I
make the following:
' All dates are 1968, unless otherwise specified.
'An issue which engendered some heat but little light at the hearing was
whether the 41 had been laid off or discharged . It is undisputed that,
whatever its reasons , Respondent considered 35 clearly unsatisfactory
employees and 6 borderline . The six were offered jobs as new employees
when business picked up in October . Respondent was unwilling to state
whether a further upturn in business would cause it to seek out any or all
of the other 35. Although I do not think the distinction makes any
difference , I find that all 41 were discharged on July 11 since the 35 had
and have no reasonable expectation of recall and , while intervening events
demonstrate that the 6 had a reasonable expectation of returning to work
for Respondent , it was as new employees rather than old. Layoff implies
the continuance of an employer-employee relationship , for some reasonable
period of time, which will lead to restoration of the employee to his old
status and privileges in the event he is recalled to active duty.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, and I find
that the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Undisputed Facts
In the fall of 1967 Respondent's prospects were bright.
An 8-year record of continuous growth at the rate of
approximately 20 percent per year was culminating in a
record high sales figure of $2.9 million. Anticipation that
the same trend would continue caused Respondent to
budget for 1968 on the basis of an estimated $3.1 million
in sales.
Respondent ' s customers , bottlers, and distributors of
beer and soft drinks , are engaged in what is mainly a
seasonal business. Most of their orders for new truck
bodies are placed in winter so that the trucks will be ready
for use at the beginning of their season. However, in
February a strike in the glass industry caused a downturn
in the bottling industry which, in turn, caused a marked
drop in the number of orders for truck bodies received by
Respondent. Consequently, on April 23, Hodges Hackney,
Respondent ' s sales manager , prepared and presented to
Respondent ' s managers a new sales projection based on
the altered situation. His study covered the period from
April 28 through the end of August.' He pointed out that
orders received in the January-April period were down
$251,578 from 1967 and that, for Respondent to keep
abreast of its original 1968 budget , his salesmen would
have to write new orders in the amount of $983,749. He
said it was his considered judgment, in light of the
situation as it then existed, that they would sell only
$673,400 worth. The latter figure was based on his
estimate of selling 259 bodies, or an average of 14.5 per
week for the 18-week period under review. Respondent's
backlog at the time was $1,669,539.' Its production
capacity was 30 bodies per week. Hodges Hackney kept a
running record of how his projection compared with
'Respondent builds bodies on truck chassis which the customers order
from the manufacturer of their choice . There is a long lag between receipt
of an order by Respondent and delivery of the finished product . Sometimes
construction of the body begins before the chassis is received at
Respondent' s plant . Sometimes the chassis arrives and is stored by,
Respondent for a period of time before the body is built. Consequently,
while Respondent keeps its sales figures , i.e., income received from
completed orders , on a calendar year basis , the sales department works on
a September I-August 31 fiscal year basis. Backlog is the amount of
unfilled orders on the books at any given moment . The number of truck
chassis on Respondent's lot at any particular time is another measure of
Respondent's economic health.
The record does not reveal how many chassis were on hand on April 23.
J. A. HACKNEY & SONS 65
reality.
The Union's campaign to organize Respondent's
employees began with a meeting on the evening of May
21. Joe Cutler became head of an employee organizing
committee, and James Edwards became its secretary.
James A. Hackney III, Respondent's executive vice
president and general manager, learned of the campaign
on the evening of May 22 when employee Guy Edwards
called him at home to tell him about the meeting. On
May 23 Hackney III assembled Respondent's employees
and addressed them at length about Respondent's and
their prospects in light of the Union's campaign.
Also on May 23 employee Chester Webb informed
Holmes Boyd, Respondent's production superintendent,
and his assistant, Melville Russ, that the Union was
attempting to organize the plant. It was arranged that
Webb would attend a Union meeting scheduled for that
night and report back. Union meetings were held on May
23, May 30, and June 5. Webb and Edwards reported to
Respondent the names of employees attending Union
meetings.
On May 27, 28, and 29 Hackney, III, addressed the
employees in six separate small groups on the subject of
unions. He read the same prepared text to each group.'
He told them that they should not select a union as their
bargaining representative because it was only after their
money and the right to speak for their jobs, because they
would lose their valuable right to speak for themselves,
because only management could grant them increased
benefits, because they might have to testify that they had
signed an authorization card , because signing an
authorization card could submit them to union discipline
such as fines, because participation in an economic strike
could cost them their jobs through the hiring of
replacements, and because strikes can lead to violence,
bloodshed, and the rupture of close personal relationships.
He told them that they shoud not believe a union
organizer who told them that they had to sign an
authorization card in order to protect their jobs and
assured them that "no employee will receive any special
privileges or be treated any differently because he might
be serving in some official or unofficial capacity with a
union, or is member of a union." He cautioned them
against engaging in "conduct which will necessarily result
in discharge or other disciplinary action" on the mistaken
assumption that their union activities would protect them.
He concluded by saying, "We have a good company here
and a friendly place to work. We have good wages and
benefits here and we have tried to improve these along
with working conditions whenever possible. You know us
and what we stand for. We are friends that many of you
have had for a long time. We have progressed well
together. I sincerely hope that if a union does start to
work on you, you will remember what I said today and
will not allow some stranger to come in here and start us
fighting among ourselves and destroy what is now a good
friendly family relationship. We know that only by pulling
together, in the same direction, can we improve the
welfare of all of us." He then invited questions.
Employees voiced complaints about their wages and
Respondent's job progression plan.
On May 7, the date closest to April 23 for which the statistic is available,
there were 119.
'The speech was taken from a manual for employers on how to oppose
organization . The photocopy which is in evidence is 9 double-spaced pages
long. The pages are numbered 71 through 79. At the end is a note which
points out that the talk is merely intended as a general outline , should be
James A. Hackney, Jr., Respondent's president, ran for
county commissioner in a local election held the first week
in June. During the last week in May campaign buttons
which read "I'm For Hackney" were made available in
the plant. Several employees altered the buttons to read
"I'm For Hackney Union" and wore them.
On June 5 Hackney, Jr., addressed the employees. His
subject was the Union's organizing campaign and
Respondent's economic situation.
During the week ending June 25 Respondent reduced its
normal workweek from 50 to 45 hours. On June 28
Hackney, III, decided to discharge enough employees to
reduce the complement to the size required to produce
approximately 14.5 bodies per week. On that day Hodges
Hackney's running record of projected sales versus actual
sales showed a projected figure for the week ending June
25 of 130.5 bodies, actual sales of 135 bodies. On July 1
Hackney, III, sent a memorandum to Boyd which reads,
in part-
Here are the approx. totals by dept. Let me know if
it needs to be rebalanced. Levels are based on 10 crews
in assembly, which should be exactly right for the 14.4
bodies per week projection from Hodges [Hackney].
Please get with Melville [Russ] and come up with a
systematic plan for reducing each department to these
quotas.
Don't let any word leak out about this. I'd hate to
think what some of these guys might do. The target
date for the move will be about the end of next week,
unless orders pick up dramatically.
Since 1965, when Hackney, III, took over from his
father as Respondent's operating head, Respondent has
rated all of its employees twice a year. The ratings are
dated January 1 and July 1. They are actually made by
the foremen in the last week of December and June. A
form is used on which each employee is rated in eight
categories such as quality of work and productiveness on a
numerical scale which ranges from four for excellent to
zero for poor. The ratings are added to give the man's
composite score. The average departmental score for each
category and the average composite score are also entered
on the sheet so that the man's standing relative to the
departmental' average can be ascertained at a glance. The
rating foreman's score may be adjusted up or down by his
superior, usually Russ, by a maximum of one point.
In response to Hackney III's directive, Boyd and Russ
recommended, and Hackney III approved, the following
systematic plan for selecting employees for discharge:
Each man's deviation from the composite departmental
average in the two most recent ratings - that is, the
ratings made in the last week in December 1967 and in
the last week in June 1968 - was noted and the two
deviations averaged. An average deviation of -1.2 was
arbitrarily selected as a cutoff point. Any man with that
rating or lower was automatically selected for discharge.
When the results were correlated with the total number of
men in each department who would have to be let go in
made to "sound like you" and should be checked with advisor or attorney
before being used It is obviously designed for use by North Carolina
employers since all of the statistics and examples it contains are North
Carolina statistics and examples
'This system obtains in the assembly, subassembly , chassis, fabrication,
and paint departments but not in the general services department. Since
the latter lumps together miscellaneous employees of widely varying duties,
a departmental average would have no validity in judging any individual
employee. Consequently, in general services , ratings are averaged for each
job title.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to get down to the quotas and job titles enumerated
in Hackney, III's July 1 memorandum to Boyd, it was
found that an arbitrary -1.2 caught ,only 35 of the 41
required.' The other six were added after conferences of
foremen and Boyd and Russ in which the value of each
was weighed against the value of other employees who
were closer to the departmental average than -1.2.
On July 3 Hackney, III, in a speech to all the
employees , announced a revised job progression plan and
wage increase , effective July 17. He explained the delay
since the men voiced their dissatisfaction with the old plan
on the ground that considerable time had been spent in
devising the new one . He said that , initially , the raise
would amount to 5 cents an hour for everyone but that,
potentially , the new plan would lead to additional raises
ranging from 8 cents to 22 cents an hour in 2 to 4 months
steps. He pointed out that the new plan incorporated the
employees' own suggestions, utilized a point factor system
similar to other companies , was based on having each job
graded by four to six men familiar with the job, and
called for publication of written job descriptions. He
stressed the fairness and impartiality of the new plan.
Prior raises had been granted in the late spring and the
late fall of 1967, 1966, and 1965.
At approximately 4 p.m. on July 11, with no prior
warning , the 41 employees previously selected were
discharged . On that day Hodges Hackney ' s running
record of projected sales versus actual sales showed a
projected figure for the week ending July 19 of 159.5
bodies , actual sales of 148 bodies . Hackney , III, addressed
the men at that time. The discharges were effected by
giving each man a form provided by the Employment
Security Commission of North Carolina in which certain
information common to all the discharges such as
identification of the employer, last date worked (7/11/68),
date separation known (7/11/68), and reason (lack of
work) was inserted. However, that part of the form on
which the employee is to be identified was left blank. The
discharged men had to return to the plant the following
day in order to turn in their uniforms, receive their final
paychecks, and get an individualized form which they
could take to the state agency to obtain unemployment
benefits. This was the first mass reduction in Respondent's
force for lack of work since, at least, 1960.
B. Independent 8(aX1)
1. Spying on union meetings
Respondent defends this aspect of the case on the
ground that it was merely the recipient of information
volunteered to it by willing employees and did nothing to
solicit or encourage their activities . The testimony presents
many sharp credibility conflicts. Their resolution is less
important than would normally be the case since I would
find a violation even if the only evidence before me were
the admissions of Respondent ' s wittneses . However, I do
not resolve all the conflicts in Respondent's favor. Rather,
the facts which follow are a synthesis of the testimony of
'I credit Hackney , III's explanation that he adopted an attrition
program as early as April when Hodges Hackney warned him Respondent
was in trouble and that a total of 41 was only decided on at the time of the
discharges on July 11. However, there is no indication that any employees
left in the interim between the final decision as to which employees would
be let go and July 11. Two men, Cheater Webb and one other , quit while
the study was being made . Therefore, it is clear that fate did not intervene
to save anyone 's job once the men to be discharged were selected.
all the witnesses and represent my conclusion as to the
inherently most likely course of events flowing from the
admitted situation and details as to which there is no
disagreement . It is undisputed that , first , Chester Webb
and, later, James Edwards reported to Boyd and Russ the
names of employees who attended various Union
meetings. Lists of names which they compiled as well as
notes written by Edwards and witnessed by Webb which
accompanied them are in evidence. As to specific conflicts
between specific witnesses , I have not credited James
Edwards in any respect in which his testimony is not
corroborated by another witness . Edwards became
secretary of the Union's organizing campaign at the outset
yet just a few days later he was secretly sending notes
containing such sycophantic expressions as "My main
concern is to the Company `out of my own free will' to
protect this Company with the best of my ability to stay
out of the Union" and "I wish to thank you, sirs , with all
my heart" and "So, Mr. Russ, I hope you and the
Company will not fire me over this mess because I am
strictly for my Company." No person, in my opinion,
capable of such venality is worthy of belief. Moreover,
hospital records and a cancelled check and supporting
voucher introduced by Respondent establish that events
could not have happened in the sequence and manner
testified to by Edwards. Finally, his admissions on the
subject when coupled with the check and voucher satisfy
me that his effort to explain a routine loan as a payment
for his activities as a spy was a deliberate prevarication.
Where, therefore, the General Counsel's case depends on
the testimony of Edwards alone, I have credited
Respondent 's witnesses over him.
Chester Webb, on the other hand, struck me as a
generally credible witness. It is true that he too played a
double game, sitting in Union meetings and pretending an
interest with his colleagues in organization while betraying
their names and interests to Respondent, but he undertook
the agent's role from the start and did not, like Edwards,
sell out his fellow employees after first enlisting on their
side. While spies, in any context, are not generally
accorded the highest marks for honor, it does not follow
that they are, per se, liars . I have, therefore, credited
Webb over Boyd and Russ as to the details of what
happened at their admitted meetings since I cannot believe
that human beings in the situation faced by Boyd and
Russ would have acted with the correctness of properly
programmed automatons that they ascribe to themselves
and Respondent generally.
The first Union meeting was held on the evening of
May 21. The next morning just before work Edwards told
Webb he had some important news for him. Webb told
Edwards he would talk with him later. That evening, when
Webb visited Edwards' home, Edwards told him about the
Union campaign. The next morning, May 23, Webb asked
his foreman, C. D. Jackson, whether he knew what was
going on. Jackson said he had heard some rumors but did
not know any details. A few minutes later Jackson sent
Webb to the office which Boyd and Russ share. Boyd
reminded Webb of loans and other help he had received
from Respondent on prior occasions when Webb had been
in trouble and then asked Webb to help Respondent fight
the Union. Webb indicated his willingness to do so. Boyd
and Russ questioned him at length about what was going
on in the plant. Webb told them that a Union meeting
was scheduled for that night. Boyd asked Webb to attend
and report back, including the names of any employees
who signed authorization cards. Webb agreed to do so.
J. A. HACKNEY & SONS 67
The next morning, May 24, Webb gave a list of names
of employees who had attended the meeting the night
before to Jackson for Boyd.' A few minutes later Jackson
sent Webb to Boyd's office. The list was on Boyd's desk.
Boyd and Russ asked about various of the names on the
list, what the individuals had done at the meeting and
whether they had signed a card. When Edwards' name
came up, Webb told Boyd and Russ that Edwards had
been secretary of the meeting. Boyd asked Webb whether
he thought Edwards would help them. That night Webb
went to Edwards' trailer and recruited Edwards to spy on
the Union for Respondent.
On May 28 Webb delivered a note from Edwards to
Russ .' This is one of the notes from which I have quoted
above in assaying Edwards' credibility.
Following the next Union meeting on the evening of
May 30, Webb and Edwards repaired to Edwards' trailer
where Edwards drafted a second note to Russ. The next
morning , May 31, Webb handed Edwards' note to
Foreman Jackson. As before, Webb was sent to Boyd's
office where Boyd and Russ questioned him at length
about the previous night' s meeting . On this occasion
Webb wrote out a statement, witnessed by Russ, about
being offered "double what the Company had been
rumored to offer me" if he would join the Union.
Webb continued to report to Boyd and Russ on Union
meetings in early June. On one such occasion, June 3, he
delivered a third note from Edwards to Russ. I have also
quoted from this note above. More importantly, it reads,
in part, "Chester D. Webb has advise you on second
meeting that took place last Thursday night [i.e., May 231
so I take this time advising on first meeting [i.e., May
211. At first meeting these boys did attend. ..." There
follows a list of names, broken down by departments.
Boyd and Russ questioned him at length about the names
on Edwards' list. On another such occasion, June 6, he
delivered a list of employees attending a Union meeting
the night before. On one of these occasions Boyd told
Webb to tell the men that they should get their cards back
from the Union organizer in order to protect their jobs.
Webb relayed this message to several employees without
indicating that the advice originated with Boyd. The
Charging Party 's campaign petered out around mid-June.
However, a second union, the United Automobile,
Aircraft and Agricultural Implement Workers of
America, AFL-CIO, became interested, at least to the
'This is the only irreconcilable point on which I have credited
Respondent 's witnesses over Webb . Webb testified that , on each occasion,
he gave the lists and notes directly to Boyd rather than to Jackson, who
took them to Boyd , as they testified . I conclude that Webb was mistaken
as to this unimportant detail and do not consider the discrepancy as
rendering his testimony less reliable in any respect . The important point is
that Boyd admitted receiving and perusing lists and /or notes on more than
one occasion.
'In making my findings with respect to the times at which , and the
sequence in which , various contacts between Webb and Boyd /Russ took
place, I have relied on dates which appear on various lists and notes which
are in evidence . One list , bearing the date "6/6/68 ," and the note from
Edwards which contains a list, bearing the date "6/3/68," were produced
by Respondent at the hearing and admittedly received , although not
necessarily on the dates they bear. I find, relying on internal evidence
therein , that the letter was written on May 30 although not delivered until
June 3. Also in evidence are notes from Edwards bearing the dates
"5/28/68" and "5/31/68," as well as a document bearing the date
"5/31/68" which Webb testified he wrote in Boyd 's office . As to these
three, I credit Webb's testimony that he delivered the first two and wrote
the third . As to the date noted on each document , I find that the notations
were made by Hackney , III, on or shortly after each document was
received by Boyd and Russ.
extent of holding one meeting of Respondent's employees
around July 1. Reporting on that meeting was Webb's last
piece of espionage for Respondent. On that occasion Boyd
remarked, "Whew, that's a large union. Well, Hackney is
already sweating, but it looks like the other union has
cooled off. I don't believe we have a whole lot to worry on
this, because a lot of employees are scared now from that
last union mess ." Webb quit on July 5. In his last week at
work, when he informed Boyd of his decision, he
suggested that Edwards could take his place in reporting
to Boyd. Boyd reluctantly agreed since, he said, he was
not sure that Respondent could trust the double-dealing
Edwards in the same way it had trusted Webb. Boyd told
Webb to tell Edwards that, if he agreed to the new
arrangement , he had nothing to worry about concerning
his job. Webb relayed Boyd's message to Edwards in the
hospital.
Edwards was hospitalized twice during the period
relevant to this case, from June 4 to 6 and again from
July 2 through 4.10 When he returned to work the first
time, he asked for and received a loan of $50 from
Respondent. He made the request to Boyd. Boyd granted
his request in conformity with Respondent's longstanding
policy of making loans to its employees up to the amount
of one week's wages. Edwards had requested and received
similar loans on several occasions in the past. This
transaction took place on June 14.11 On June 17 Edwards
told Boyd and Russ that other employees were accusing
him of taking bribes to spy for Respondent. Boyd told
Edwards all the employees knew that Edwards had
borrowed money from Respondent many times in the past
and that the June 14 transaction was just more of the
same.
On June 27 Edwards complained to Boyd that his
foreman, Ray Winstead, had reprimanded him for
wandering around his department and talking to other
employees. Boyd told Edwards he was sure Winstead had
a valid reason for reprimanding him. He assured Edwards
he had nothing to worry about as long as he did his work
and followed Winstead's directions. On July 5 Edwards
complained to Boyd that other employees were cluttering
"Edwards testified Webb told him each time he was in the hospital that
Webb was going to quit and Boyd said Edwards would not have to worry
about his job if he took over from Webb as the spy. As I have indicated, I
do not credit Edwards and find, as testified by Webb, that the hospital
conversation took place only once , just before Webb quit in early July.
This, of course, throws an entirely different light on the money advanced
to Edwards by Respondent on June 14. At that time, the only anti-Union
service rendered to Respondent by Edwards had been the notes from
Edwards delivered by Webb. There is no evidence of any direct contact
between Boyd and /or Russ and Edwards prior to June 14. In fact,
Edwards' notes to Russ contain such revealing statements as "Please try
not to contact if necessary until this matter clear up so I can keep all
information coming in" (5/28/68) and "A guy name Walter may speak
against me a hell of a lot but what he don't know " (5/31/68).
"Edwards places this incident on June 26, and his version of the
conversation with Boyd when he received $50 from Respondent forms the
basis for allegations in the complaint that Respondent violated Sec . 8(a)(l)
of the Act on June 26 when Holmes Boyd interrogated employees,
"promised and granted benefits to employees to spy upon and report to
Respondent the union activities of fellow employees . [and] .
.threatened to discharge prounion employees...." As indicated, I find
that no words were spoken by Boyd on this occasion that related in any
way to the union activities of Respondent's employees . Also, I consider it a
matter of no significance that the "James Edwards" appearing as
acknowledgement of a $50 loan to one James Edwards on June 14 on a
voucher supporing the $50 check admittedly received by Edwards on that
day is not Edwards' signature . It is followed by "(BLC)" and was
obviously placed there by the clerk who drew up both check and voucher
and whose initials , apparently , are B.L.C.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up his work area. Boyd said that was probably a natural
reaction if the employees knew that Edwards was turning
in information about their union activities and promised
to try to prevent any further harassment . On July 8 Bbyd
asked Edwards to cut some material for him. While they
were engaged in this activity Edwards volunteered to Boyd
that he was worried about losing his job, that he knew
which employees had signed Union authorization cards,
and that he had enough influence over them to insure their
support of Respondent rather than the Union.':
On the basis of the foregoing, I find that Respondent
violated Section 8(a)(1) of the Act when, on May 24,
Production Superintendent Holmes Boyd and his
assistant, Melville Russ, solicited Chester Webb to spy
upon the union activities of his fellow employees and
thereafter utilized his and Edwards' services in such
spying. Respondent's contention that it is blameless
because both Webb and Edwards acted voluntarily must
fail because, even absent any showing that Boyd and Russ
took the initiative in the beginning or overtly encouraged
Webb as time went by, the mere fact that they continued
to accept and profit from the fruits of Webb's and
Edwards' spying in incident after incident is sufficient to
constitute solicitation and encouragement of the spying.
While the fact that an informant has volunteered
information to an employer on one occasion, as in the
July 8 conversation between Boyd and Edwards, may
preclude a finding that the employer interrogated the
employee or sought to enlist him as a spy, the continuing
relationship between Webb and, indirectly, Edwards on
the one hand and Boyd and Russ on the other is another
situation entirely. Since I have found that Boyd and Russ
did and said much more than they themselves admit in
their dealings with Webb during this period, the
conclusion I have reached with respect to the spying
becomes inescapable. By the same token, I also find that
Respondent violated Section 8(a)(1) when Boyd and Russ
interrogated Webb about the union activities of its
employees on various occasions during late May, June,
and early July. Finally, I find the General Counsel has
failed to prove that Respondent promised and granted
benefits to employees to spy upon fellow employees or
threatened to discharge prounion employees."
2. The button episode
This incident also presents a credibility problem. Billy
Tyre testified that his foreman, Ray Winstead, told him
and others to take off the "I'm For Hackney" buttons
"The testimony of Edwards on these episodes was offered by the
General Counsel in support of allegations in the complaint that , on June
27, Winstead ". . . promised and granted benefits to employees to spy
upon and report to Respondent the union activities of fellow employees . .
." and that , on July 8, Boyd interrogated employees and " ..threatened
to discharge prounion employees ... ' As indicated, I find that no such
words were spoken by either Winstead or Boyd on these occasions.
"The complaint alleges that an agent of Respondent named Keefe
Hackney also committed each of these violations as well as threatened to
close the plant if the employees brought in a Union . In addition, an
allegation that Hackney , III, on July 8, attempted to interfere with
employees ' right to attend union meetings is also predicated on words
allegedly spoken by Keefe . Keefe Hackney is another son of James A.
Hackney, Jr. He was working for Respondent as a timestudy engineer
during the period relevant herein . The General Counsel had no other
evidence to offer to establish Keefe ' s agency or supervisory status.
Consequently , I sustained Respondent 's objection to testimony relating to
incidents involving Keefe . The General Counsel 's offer of proof indicates
that the only witness who would have testified about such incidents in the
presentation of his case was James Edwards.
which they had altered to read "I'm For Hackney
Union," saying, "It don't look very nice. I think you
ought to take them off or even do away with the union
part." Later, according to Tyre, he saw his name and the
names of others who had been wearing the buttons on a
pad in Winstead's hand. When Tyre asked what was going
on, Winstead told him that he had to take down the
names of all those wearing the pins and turn them into
James A. Hackney, III. Tyre then saw Winstead take the
list to the office. Winstead, on the other hand, while
admitting that he saw some employees wearing the altered
button and that he had talked to Tyre about it, denied
telling Tyre to take the button off or taking down the
names of those who wore them. I credit Tyre over
Winstead and find that Respondent, by Winstead's actions
on this occasion, violated Section 8(a)(1) of the Act.
3. Hackney, Jr.'s threat to close the plant
Four employees testified that James A. Hackney, Jr.,
Respondent' s president , spoke extemporaneously on May
23 at the conclusion of the speech which his son, James A.
Hackney, III, read to them that day. Each said, in
substance, Hackney, Jr., made the point that he had
enough money for himself and would padlock the plant if
the Union came in . Hackney, Jr., testified that he did not
make any such statement on that occasion, asserting that
his business records show he was in New York that day. I
credit his explanation and further find that, as he claimed,
his only contribution to Respondent' s campaign to defeat
the Union' s organizing campaign was a speech he read to
the assembled employees on June 5. The text of that
speech is in evidence. It reads, in part:
... Some years ago, we had an approach by a union
representative, and he talked to a number of our
employees. At that time, we were small, my sons were
in college , my other children in grammar school. We
had a plant meeting and discussed the matter frankly,
above board, and man-to-man. The employees told me
that the union representative had told them, and I
quote to the best of my memory, "Mr. Hackney is
well-to-do and can pay you better wages." At that time,
I explained to the men that it was true that I was in a
financially secure position and was, by standards of
Beaufort County, reasonably well-to-do. I pointed out,
however, that it was the business that they were
working for and not me personally and that their
demands for increased wages or any other demands
would have to be made against the business as I
certainly would ,be take my hard-earned personal
assets and simply contribute to the business to insure
that everyone connected with it was more prosperous
and happier. However, I told them at that time that if
they decided to work and continue working for the
business that I would make them a promise that just as
fast as the business earned profits, I would plow the
profits back into the business and increase their wages,
their fringe benefits, and their working conditions as
long as the business was profitable - that the
philosophy of the business would be profit returned to
the business for growth and opportunity for leadership
for everyone that worked. Gentlemen, I have lived up
to that condition as well as I could. I have maintained
my end of that bargain, and the philosophy of J. A.
Hackney & Sons has been exactly as I stated some 10
or 12 years ago . . .
Hackney, Jr., admitted that he departed from his
prepared text twice. In one deviation he expanded the
J. A. HACKNEY & SONS 69
passage just quoted thus:
. I pointed out that I owned stock in Hackney
Brothers Body Company in Wilson, North Carolina,
Carolina Telephone and Telegraph Company and
Wachovia Bank & Trust Company and that I thought I
was well enough to do to hunt and fish the rest of my
life...
The Wachovia and the hunting and fishing references
are common to the testimony of the four employee
witnesses. Therefore, I find that they were mistaken in
attributing Hackney, Jr.'s remark about padlocking the
plant to a May 23 incident but were, in fact, remembering
what Hackney, Jr., said when he deviated from his
prepared text on June 5. 1 find that what Hackney, Jr.,
actually said on that occasion was-
I explained to the men that it was true I was in
a financially secure position and was, by standards of*
Beaufort County, reasonably well-to-do. I told them
that I owned stock in Hackney Brothers Body
Company in Wilson, North Carolina, Carolina
Telephone and Telegraph Company and Wachovia
Bank & Trust Company and that I thought I was well
enough to do to padlock the plant and hunt and fish the
rest of my life .. .
Although couched in terms of what Hackney, Jr., said
to other employees on the occasion of another union's
effort to organize Respondent, these words clearly imply
that Respondent will close its plant if this Union is
successful in its efforts in this campaign. Since they are an
implied threat, they are violative of Section 8(a)(l).
4. Other allegations
William T. Tetterton, III, testified to a conversation in
early July with Melville Russ. Russ asked whether
Tetterton had been approached by the Union. When
Tetterton replied that he had, Russ asked how Tetterton
felt about it. Tetterton replied that he was undecided, ". .
. that I wanted to hear both sides of the story first, but if
a man had a chance to better himself, he was a fool not to
do it." Russ admitted to such a conversation with
Tetterton but denies any interrogation. According to Russ,
the conversation began with his statement that he had
heard there was a union campaign going on and would
appreciate Tetterton's support of Respondent. Tetterton
then volunteered his opinions and information about his
activities. I credit Tetterton since it is inherently more
credible that a conversation of this nature in the context
of an industrial plant and workmen unversed in the
intricacies• of labor law started in the manner related by
Tetterton rather than Russ. I find that Russ' interrogation
of Tetterton on this occasion constitutes a violation by
Respondent of Section 8 (a)(1).
The final' ° bit of independent 8(a)(1) pits Douglas
Mack Bell against his foreman, Cecil Sullivan. Bell
testified that, during the course of a general discussion of
the campaign a week before his discharge on July 11,
Sullivan told Bell he knew Bell was for the Union.
Sullivan admitted that he had discussed the Union's
campaign at various times with various employees,
probably including Bell. He could not recall any specific
conversation with Bell and denied categorically ever
making the statement attributed to him by Bell.
Bell also testified to a conversation with Sullivan on
July 12 when he returned to the plant to complete the
discharge process. According to Bell, he asked Sullivan
where Sullivan thought Bell could find another job and
Sullivan replied the best thing for Bell to do was to leave
town. According to Sullivan, Bell was in an overwrought
state and spoke of committing suicide because he had lost
his job. Sullivan tried to calm him by telling him there
were plenty of jobs to be had around town and all Bell
had to do was go look for one.
I am convinced from my observation of Bell on the
witness stand that he is the sort of personality who might
well react in a semihysterical manner to the loss of his job
and misunderstand or misinterpret words spoken to him
under such stress. Consequently, I credit Sullivan over
Bell. Since there is no evidence that Sullivan spoke any
words on the first occasion which are proscribed by the
Act and since the words which he did speak on the second
occasion are only friendly advice and in no way contain
an implied threat that Bell had been blackballed in
Washington, North Carolina, because of his union
activity, I find that Respondent did not violate Section
8(a)(1) on either occasion.
C. Motive For The Discharges
This issue requires a detailed look at the words which
James A. Hackney, III, admittedly used in critical
speeches to Respondent's employees on May 23 and July
11. There can be no dispute on this point because, on each
of these occasions, he read his speech, and a copy of each
is in evidence. On May 23, immediately after learning of
the Union's organizing campaign, he said, in part:
. Our backlog of orders at this moment compared
with last year at this time is substantially down. This by
no means means that it is down sufficiently for us to
push the panic button or to take drastic action.
However, our backlog is low enough that the rate of
arrival of orders will determine whether or not we will
continue our present level of production. For the
present time there has been no decision, and I will
repeat, NO DECISION, to reduce production - either
through layoffs or through reduction in our present
50-hour work week, rumors to the contrary
notwithstanding.
.This is the first time in four years that our
backlog has been low at this point in the season. if I
had to give you a single reason why it is lower now, it
would have to be UNIONS. The nation experienced
two major strikes in a row which severely affected our
customers' businesses, and therefore severely affected
ours. . Fortunately, we had experienced a very
successful early fall, and our backlog of orders for the
late fall and winter remained high in spite of the Ford
strike. As a result, we were able to operate at 50 hours
per week through the entire fall and winter, which was
the first time in our company's history that we have
done this . on February 1 of this year a second
union, the Glass Bottle Blowers' Union, delivered what
turned out to be a devastating blow. From Feb. 1 until
March 22 the Glass Union was out on strike.
... We are now at the point where orders received
are approximately equalling our production each week.
"Allegations that the July 3 wage increase and Hackney , III's July II
speech violated Sec . 8(a)(I) are dealt with below in connection with the
motive for the discharges . An allegation that Respondent ". . harassed
discharged prounion employees at their new places of employment" is
supported only by the testimony of James Edwards about various alleged
incidents in late July and early August at a Zipmart where he was
employed as a clerk. Even if I believed Edwards , the episodes are too
trivial to be worth further consideration.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So, our backlog level in holding at a reasonably
constant figure. As long as it does, our present level of
production will be maintained. However, as I
mentioned earlier , we have to wait and see.
To put this in terms of what the present outlook
means to you , there is a prospect that we may have to
cut back to 45 hours per week in the foreseeable future.
If we do, it should be for only a short time . A cutback
of this type is not unusual . We cut back to 45 hours in
the summer of 1964 and 1965. We cut back to 45 hours
in the fall of 1966. This cutback is the rule rather than
the exception. 1967 was the only year in the history of
our company that we never worked less than 50 hours
per week, except in conjunction with some holidays. We
have generally considered 45 hours per week, or five
nine-hour days, to be a reasonable minimum work week
here at Hackney. Therefore, we do not plan to cut back
below that level. We do not foresee a layoff of any
personnel.
I can assure you that a cutback in the number of
working hours would be extremely distasteful to me as
it would be to you. I am aware of your unhappiness
now at not making as much overtime this year as last
year. A cutback therefore will be used only as a last
resort , if absolutely required to reduce our level of
production to that required to take care of existing
orders. Our present reduced backlog is something over
which neither you nor I have any control. Our salesmen
are out working as hard as they can to keep orders
coming in . There is nothing more that we can do that
we are not already doing. The reason for a cutback, if
it becomes necessary , should be apparent . If the orders
which we are receiving week to week reach a level low
enough that we only need the same number of men
working at 45 hours to produce them, rather than 50
hours we will have to cut back to 45 hours. We cannot
continue paying the cost of 50 hours of work when
there is only 45 hours of work to turn out. To do so
would mean that we would lose money, which would
seriously affect the job security of each employee of the
company. No person, and no organization, can change
this basic situation . If we had a union here , our job in
cutting back production would be much easier. We
would just tell the union how much cutback was
required and they would take care of it, probably by
laying off the number of employees necessary to reduce
the production level. This is one of the functions of a
union . We would not need to come to you and explain
what the outlook is. In fact, the presence of a union
would probably end this type of communication
between you and us. We could simply sit back and let
you get the "shaft" from the Union without our having
to worry about your welfare....
I move now to the second point which I mentioned
earlier, and that is one of productivity and efficiency.
The most human and natural thing to consider at this
moment is probably the one thing that would be the
most disastrous . I refer to the idea that it would be
simple to slow down your pace of work so that you are
producing less in the same hours as you are working
now. If this idea has occurred to you, please do not
consider it further. Let me show you a slide showing
where we stand this year in terms of efficiency, as
compared with last year at the same point .... In other
words, our labor cost compared with last year is up
9.6%. This loss of labor though lower efficiency is
costing exactly the same as a wage increase of 18.5
cents per hour....
We have promised you repeatedly in the past few
years that improvements in productivity would be
repaid to you in the form of wage increases. What do
we mean by this, and how do these changes come
about? Let me show you another slide which would
answer these questions....
Our efficiency should be independent of the size of
our backlog. The same number of hours are required to
do a specific job, whether we have two weeks or twenty
weeks of backlog. Accordingly, your wage rate is not
related to the amount of backlog.
What about a wage increase? We want to give one,
and in the past we have given some on the prospect for
future improvement, rather than on a past history
which was less encouraging. Normally by early May
during the past few years we have been able to
determine enough of a trend of progress to make a
decision on a wage increase . As you have seen, this
year there has been no such trend. Quite the contrary,
our performance this year has been somewhat
disappointing. We all know that we have devoted much
manpower to building our new facilities and to moving
into them. This is one reason we did not become
concerned about the trend earlier. We took this into
account and patiently waited for the time that our move
would be complete and we could begin earning the
benefits of increased efficiency. Well, our move is now
complete, and I hope there will be a substantial
improvement in the near future.
I am not saying that there will not be a wage
increase this spring. I am saying that we will require
more time to determine if a trend of improvement
exists that will permit us to give a wage increase. A
decision will be made later with respect to this....
In summary, let me stress again the following points:
1. We do not intend to reduce working hours from
50 to 45 unless absolutely necessary.
2. We will reduce the work week if necessary, rather
than lay off personnel. We feel that each employee is a
valuable member of our production team, and we do
not want to lose anyone.
3. The outlook for the future is not dismal. Our
slump should be temporary.
4. We must gain back our loss in efficiency. When
we do, a prompt decision will be made regarding a
wage increase.
5. Whatever happens, we will come directly to you
and tell you. DO NOT BELIEVE RUMORS. They
destroy morale, and they are seldom accurate.
[Emphasis supplied.]
Most revealing is what he said to all the employees on
July l l as he discharged 41 of them. Any omissions would
impair the full flavor of Hackney, III's state of mind and
the message he intended to convey to retained employees.
Therefore, the document is reproduced here verbatim:
It seems that in recent times we have had a problem
in communicating. Perhaps this was my fault; I spoke
nice and gently and didn't quite use language you
understand. Well, today I don't intend to make that
mistake. You're going to get the message loud and
clear, in terms that even the thickest of you will
understand.
We've been awfully patient recently. We have been
more patient that we have ever been before, or than we
are every going to be again. It seems like all I have
done is listen to some of you bitching and bellyaching
for months. Don't misunderstand me. I don't consider
J. A. HACKNEY & SONS
our small group meetings as bitching and bellyaching? I
went into these meetings honestly trying to find out
your problems and what could be done about them. I
intend to hold these meetings again, as they are needed.
I thought I had found out a lot of your problems. The
one thing that you all seemed to agree on was that
revisions were needed in our job progression plan. You
said that it had a lot of areas where it wasn't
completely fair, and that there was no logical system
for grading jobs. And, you were right. You also wanted
a raise, and many of you deserved one. A hell of a lot
of you didn't, but we couldn't really single you out and
withhold it. So, Holmes and Melville and I set out to
correct some of your complaints with action. Since the
job progression plan was unfair, that meant that some
jobs were graded too high and some were graded too
low. That's what YOU told ME. To improve this we
had to take care of both cases. We also wanted to give
you a raise, even though at the time the company can't
really afford it. So, we worked our asses off to come
out with a revised job progression plan that did
everything you told me you wanted: provided a fair,
uniform and impartial system for grading jobs, and at
the same time incorporated a raise for everyone. We
made one big mistake, though. We thought the raise
was important to you, so we rushed things so you
would get your raise, and we didn't get every single
detail down to a gnats eye. We figured you would be
happy with the raise and would go along with us until
we could straighten out the final details. So, did we
make you happy? Hell no.
Why the hell do you think we made any changes at
all in the job progression plan? Not because I wanted
it. I was happy with it the way it was. Why, then?
Because YOU asked for it. Where do you think we got
the new system for grading jobs? We simply took a
time tested, time proven point-factor plan right out of a
good personnel handbook. This is exactly the same type
plan that big companies like General Motors and IBM
use. Most of the sample plans had eight or more
grades, but we figured five were as many as we could
live with right now. I'm damn glad we didn't use more.
We have enough problems as it is. The new plan had
quite a few advantages going for it. It let us grade each
job fairly, without letting any one person's opinion of
the job or the man performing it enter into the decision.
And, it's a plan we can use and build on in the future.
But, apparently a lot of you didn't like the flavor of the
ice cream you ordered. In five minutes you forgot that
you had just gotten a raise. You were either bitching
because your buddy got more, or if you were that
buddy who got more you were bitching because you
didn't get it soon enough. So now everything is in an
uproar and production is gone to hell because YOU
didn't even know what you wanted.
I have a hell of a lot more problems than your
unhappiness. Since I have listened to your problems,
maybe you ought to listen to one of mine that concerns
you. Thanks to some of you, production has been lousy.
In the last two weeks, production has been fifty
thousand dollars below our break even point. Do you
know what that means? That means we are losing
money each and every week we operate like this. We
also need more orders, and I needed to spend more
time helping to develop sales to help us all, but there
have been so many problems in production that I
haven't had time. Well, fellows, in good times I can be
awfully patient and take a lot of crap. But when hard
71
time come, I know that the only chance we got is to
all pull together, and suffer and sacrifice a little
together, and pull through it. Unfortunately, there are
some of you who never quite got the word. All you did
when things got tough was work your jaw instead of
your back. You bitched and griped to anyone that
would listen. You loafed, you goofed off, and you tried
to get others to do the same . I figure that by doing that
you stabbed me in the back, and you stabbed your
fellow workers in the back, too. Well, when that
happens I'm not too patient anymore. In fact, I can be
a real son of a bitch.
Some of you guys didn't know when you were well
off. You've gotten so many raises and new benefits in
the last few years that you don't even notice them
anymore. It's got to be something really spectacular to
even get your attention. A lot of you haven't worked
many other places, so you didn't really have a
comparison. Someone told you that things were easier
and better somewhere else, and that you were
underpaid, and you believed him. Well, man, have you
been sold a line of bullshit. We had a real hot dog quite
a few weeks back who believed that line of crap, and in
one week he asked for his job back. You see, he found
that the world outside was cold and hard, and that
money didn't really grow on trees after all. And some
of you are just about to find that same thing out.
We had a decision to make. Work is slack, and we
were faced with the choice of whether to cut hours or to
cut people. But, some of you made that decision for us.
You managed to drag your feet and slow down and
goof off, until production was already down anyway.
Well, we are now at the point where we are a hell of a
lot better off without you. I think some of you thought
we were such stupid jerks that we wouldn't catch on.
Well, that's lust a hell of a bad mistake on your part.
The day of reckoning has arrived.
Effective this afternoon at five o'clock, we are
reducing our work force by 41 people. That means that
41 of you are going to get last week's paycheck and a
layoff notice by five o'clock this afternoon. For those of
you who get it, you are through. There's no need to
punch in tomorrow morning. And there's no point in
crying to me that you are really one of the good guys.
When you play with fire, you get burned. Since you
have worked eleven months since last vacation we are
going to give you 11/12 of your year's vacation pay.
You can pick up this check and the check for your two
days this week when you turn in your uniforms, clear
your charge accounts, get squared away on your tools,
and turn in your ID card. This can done any time after
1:00 tomorrow afternoon in my grandfather's office in
the front building.
I would damn well rather work together with a few
good men , and run a small , profitable business, than
have a big, unprofitable business with a group of
bastards in it that makes life miserable for the rest of
us. A lot of us are in this for a career. We enjoy our
work, and we want to continue to enjoy it. We want to
be part of a winning team, with every man here on that
team. When the team has problems, we want to talk
about them and pitch in and solve them together, rather
than running around and bitching and spreading rumors
to make everyone else think he has more problems than
he does. When times are tough, we expect everyone to
be a little more patient than normally and to work
harder until times get better. So, we are going to trim
down to the men we think share this feeling. If we have
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misjudged you, and you aren' t one of the ones who gets
it this afternoon, and you think all this work-together
stuff is a lot of bullshit, it's still not too late for you to
submit your resignation . No one has ever been forced
to come here, and no one has ever been prevented from
leaving. But I can tell you one thing. With the men we
have left we can produce more work than the whole
bunch of you has been producing for the last two
weeks, and we are going to be happier doing it.
Now I'd like to say a word that is strictly for those
people who are going to be left. We are going to have a
meeting sometime tomorrow about the changes in the
job progression plan. I have some information that I
have had mimeographed that will explain it a lot better,
and I think that the biggest problem is that you don't
understand it. But , I want to assure you that we are
going to solve the problems. All of you have been here
long enough to know that we will get things squared
away. We always have. If we can't solve the grading
problems we will make other arrangements to provide
you a place where you will be satisfied. There are a lot
of opportunities that will be available as soon as work
picks up, and you are the people who are going to get
them. So, all I ask is that you bear with me long
enough to explain the plan, to hear your objection, and
to work on doing something about them. I'll let you
know about the time tomorrow. For the rest of you
guys, Adios. The meeting is adjourned, and there's a
half-hour of work left today. [Emphasis supplied.]
The only deviation from this prepared text came at the
end when Hackney III looked at his watch and announced
the precise number of minutes left in the work day. The
"real hot dog [who] quit a few weeks back [and] who
believed that line of crap" is Joe Cutler, the original head
of the Union' s in-plant organizing committee.
I find that the discharges of July 11 violated Section
8(a)(3) and (1) of the Act because Hackney, III, when he
made his decision on June 28 to reduce the work force,
was motivated by the recent union activities of his
employee' s in seeking to organize themselves for
collective-bargaining purposes under the Charging Party's
banner and not by Respondent's economic straits. On
May 23, when he first talked to the employees about
unionization and Respondent's plight, he had had Hodges
Hackney's dire prophecies for a month. Yet at that time
he stressed Respondent's uninterrupted record of not
discharging employees when work became scarce but
reducing hours instead. He assured them that Respondent
had no intention of resorting to discharge in its current
hard times. He lectured them about the importance to
their welfare of efficient work, pointing out that a wage
raise was possible even if Respondent's backlog continued
low. His state of mind at that moment was that he would
order a cutback in the number of working hours "only as
a last resort , if absolutely required to reduce our level of
production to that required to take care of existing
orders."
A month later, just a few days before June 28 and at a
moment when Hodges Hackney's prediction was all but
right on the nose , Hackney III invoked the last resort
required to take care of existing orders, reducing hours
from 50 to 45 as Respondent had always done in prior
slack periods. On June 28, so soon after resorting to
Respondent's traditional last resort that no new economic
data were added to the situation that caused him to
reduce hours, he decided on a mass discharge , ostensibly
for economic reasons. What options did he have at that
moment? What was his state of mind at that moment9
When he decided to discharge employees Hackney, III,
had three courses of action open to him. He could have
done nothing He could have further reduced hours. He
could have reduced the work force. If he had chosen the
first, this case, in all likelihood, would never have arisen.
No further consideration of it is required. To state that he
could have further reduced hours is not to attempt to
substitute my judgment for his as to the course he should
have followed in the situation which confronted him. The
whole history of Respondent's last resort was a reduction
to 45 hours and no further. He said as much in his May
23 speech, thus, "Therefore, we do not plan to cut back
below that level." There is no doubt that the
administrative process has no power to compel any
employer to take or not take any specific action other
than in those situations where the employer's motive for
what he has done or left undone falls within the narrow
ambit of the Act's proscriptions. But on June 28 Hackney,
III, had this option open despite his reluctance to use it.
He decided, instead, to discharge 41 employees. Why?
His state of mind, of course, is laid bare by his July I1
speech. "In recent times" the men's "bitching and
bellyaching" had caused Respondent to try to satisfy them
by revising its job progression plan. The complaints had
been voiced in the context of the Union's organizing
campaign as the men responded to Hackney, III's
invitation to ask questions when he gave them the canned
antiunion speech on May 27, 28, and 29. Yet the efforts
to satisfy the complainers were for naught, and Hackney,
III, in his July 11 diatribe, equated the good guys with
those who could contribute to a small, efficient operation,
and the bad guys with the bitchers and bellyachers whose
services were no longer required because they did not have
Respondent's interest at heart. But the bitchers and the
bellyachers were linked in Hackney, III's mind with the
men who had flirted with the Charging Party, as his
reference to the hot dog, Joe Cutler, and other quotes too
numerous to mention make clear. Therefore, he decided
on a mass discharge not because Respondent was in
financial difficulties. He had just taken the only step he
had in mind at the beginning of the Union's campaign for
coping with that problem. But events which had transpired
since May 23, namely, the activities of his employees in
that campaign, had gotten him riled and he expressed his
real reason along with his anger when he spoke on July
11. He decided on a mass discharge in order to rid
Respondent of prounion troublemakers.
The "systematic" method used by Respondent to select
the 41 men discharged separated the bad guys from the
good guys with singular efficiency." The ratings made in
December 1967 were prepared at a time when no union
troubled the relations between workers and management.
The ratings made in June 1968 came in the midst of the
troubles stirred up by the Union. Two lists of names of
men who attended Union meetings turned in to
Respondent by Webb and Edwards contain 37 different
names . Because the lists are only semiliterate, it is
possible to identify only 30 with names on evaluation
records for December and June which are also in
evidence. Of these, 20 were discharged, 10 were not. Of
"in making this finding , I do not rely on James Edwards' facile
statement that he personally told Respondent that each and every one of
the 41 men discharged was prounion I do rely on Chester Webb's
carefully considered testimony that he did not specifically name only 12 of
them in his reports to Boyd and Russ, plus the admitted fact that the
Union's campaign was common knowledge in the plant and the subject of
much discussion between supervisors and employees
J. A. HACKNEY & SONS
the 10 who were not, the names of 9 appear on only l list,
that is , insofar as these reports by the spies on 2 different
meetings reveal , these 9 attended only I meeting and not
the other . Of the 20 who were , 14 names appear on both
lists . A comparison of the ratings made in December 1967
with those made in June 1968 reveals the following: Of 41
men discharged , 32 were rated both times. Of 71 men
retained , 62 were rated both times . The other 18 were
rated only in June because they had not been employed at
the time of the December ratings. Of the men discharged,
4 received a higher rating in June than in December, 28
received a lower . Of the former , one went from a rating
below his departmental average to a rating at or above it.
Of the latter , seven went from a rating at or above their
departmental average to one below it . Of the men
retained , 60 men received a higher rating in June than in
December , 2 received a lower . Of the former , 27 went
from a rating below their departmental average to a rating
at or above it. Of the latter , none went from a rating at or
above his departmental average to one below it . Finally, if
the selections had been based solely on the December 1967
ratings, 18 of the 41 men would not have been discharged.
For the reasons stated , and on the basis of the record
considered as a whole , I find that Respondent violated
Section 8 (a)(3) and ( 1) of the Act by discharging 41
employees on July 11 for engaging in union activities. I
further find that Hackney, III's July 11 speech warned
employees that their union activities had caused serious
and adverse consequences and thus violated Section
8(a)(1). Finally, I find that the July 3 announcement of a
revised job progression plan and wage increases
constituted a granting of benefits to employees in order to
induce them to abandon their interest in and support of
the Union and thus also violated Section 8 (a)(1). The
finding is made despite the fact that the July 3 benefits
fall into the pattern of semiannual raises of 3 years'
standing because , as Hackney , III's July 3 and July 11
speeches make clear , the 1968 benefits were granted as a
result of the discontent expressed by employees in the
context of the organizing campaign.
CONCLUSIONS OF LAW
Upon the foregoing findings of fact , and on the entire
record in these cases, I make the following conclusions of
law:
1. J. A. Hackney & Sons, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Chemical Workers Union , AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discharging the 41 employees whose names are
set forth in the notice which is marked Appendix and
attached hereto on July 11, 1968 , because of their union
activities and the union activities of other employees,
Respondent has discriminated with respect to their hire
and tenure of employment , discouraging membership in
the above-named labor organization , and thereby has
violated Sections 8(a)(3) and 8 (a)(1) of the Act.
4. By interrogating its employees about their union
activities , by soliciting an employee to spy upon the union
activities of its employees and thereafter utilizing his
services and the service of another employee in such
spying , by threatening to close its plant if its employees
became organized for purposes of collective bargaining, by
refusing to permit its employees to wear union buttons in
73
its plant and recording the names of employees who did
so, by warning its employees that their union activities
had caused serious and adverse consequences, and by
granting benefits to its employees in order to induce them
to abandon their union activities , Respondent has
interfered with , restrained , and coerced its employees in
the exercise of the rights guaranteed to them by Section 7
of the Act and thereby has violated Section 8 (a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The allegations of the complaint that Respondent
violated Section 8(a)(1) of the Act by Foreman Cecil
Sullivan ' s interrogating of employees on or about June 26,
1968, by promising and granting benefits to employees to
spy upon and report the union activities of other
employees , by threatening to discharge prounion
employees , by harassing discharged prounion employees at
their new places of employment , by warning prounion
employees that the best thing they could do was to leave
town, and by attempting to interfere with its employees'
right to attend union meetings have not been sustained.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
Six of the forty-one discriminatees were offered
employment in October . However , as I have indicated
above in another context , the offers were to return as new
employees and thus are not tantamount to the sort of
offer of reinstatement required to remedy a violation of
Section 8(a)(3) of the Act. Therefore , I will recommend
that Respondent offer to all 41 reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges
and make each whole for any loss of earnings he may
have suffered as a result of his discharge by paying to him
a sum of money equal to that which he normally would
have earned as wages from July 11, 1968 , to the date of
Respondent ' s offer of reinstatement, less his net earnings
during such period , with backpay and interest thereon to
be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716. I have also found the
Respondent ' s business was somewhat depressed at the
time it made a substantial reduction in its work force in
July, although that was not the moving cause for the
discharges . By October , shortly before the hearing herein
was held, business had picked up enough to cause
Respondent to attempt to reobtain the services of six of
the men caught in that reduction . It may well be that, at
the time my recommendation is complied with , business
will have continued to improve to a level which requires a
work force as large or larger than it was before the
reduction . Then again , it may well not, and only time can
tell. If, at the time my recommendation is complied with,
Respondent still needs only a work force substantially
smaller than it was just prior to July 11, 1968, in order to
handle the work it has at that time , it would be manifestly
unfair to require Respondent to discharge employees who
survived the July reduction in force and have continued in
its employ ever since in order to reinstate all the
discriminatees . The same consideration would not apply to
persons who have gone to work for Respondent since. The
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two cases differ because the former group of employees
went through an elaborate , ostensibly nondiscriminatory
selection process and retained their jobs in July. To
penalize them now because the system used by
Respondent at that time was rigged in their favor so as to
discriminate against prounion employees would be to
punish them unduly for Respondent ' s wrongdoing.
However , there is nothing unfair in now requiring them to
go through a truly nondiscriminatory selection process
which pits them against the discriminatees , insofar as the
group as it existed in July can be reconstituted now. New
employees , on the other hand , became employees after
Respondent ' s wrongdoing and are unfortunate victims in
the same boat as any persons hired by an employer to
take the place of employees against whom he has
discriminated. Therefore, I will further recommend that,
if, for economic reasons , Respondent does not need a
work force large enough to accommodate all the
discriminatees who accept his initial offer of immediate
reinstatement , Respondent may elect to solve the dilemma
in which my recommendation places it in the following
way: Respondent may use a nondiscriminatory, systematic
plan of its own choosing such as seniority or evaluation
ratings made prior to June 1968 to determine which
persons in a group composed only of discriminatees who
desire immediate reinstatement and employees who went
through the July reduction in force and have continued to
work for Respondent ever since will be employed
immediately . Discriminatees who do not qualify for
immediate reinstatement under the plan used will be
placed on a preferential hiring list and recalled to their
former or substantially equivalent positions without
prejudice to their seniority or others rights and privileges
as jobs become available and before the recall or hire of
any other person.
Finally, I conclude that the unfair labor practices
committed by Respondent are of such a nature and scope
as to demonstrate disdain for the rights of its employees
and a likelihood that violations will be repeated in the
future. Therefore, I will recommend that Respondent be
ordered to cease and desist from interfering with those
rights in any manner.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
J. A. Hackney & Sons , Inc., its officers , agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees or, in any other manner
discriminating against them in order to discourage
membership in International Chemical Workers Union,
AFL-CIO, or any other labor organization.
(b) Interrogating its employees about their union
activities.
(c) Spying on the union activities of its employees.
(d) Threatening to close its plant if its employees
became organized for purposes of collective bargaining.
(e) Refusing to permit its employees to wear in its plant
buttons or other insignia which demonstrate their
prounion sentiments.
(f) Recording the names of employees who wear such
buttons or other insignia in its plant.
(g) Warning its employees that their union activities
have caused or will cause serious and adverse
consequences.
(h) Granting benefits to its employees in order to
induce them to abandon their union activities.
(i) In any manner interfering with , restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to the 41 men whose names are listed on the
notice marked Appendix attached hereto immediate
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges and make each of them whole for
any loss of pay suffered as a result of Respondent's
discrimination against him in the manner set forth above
under "The Remedy." In the event that the condition of
Respondent ' s business precludes immediate utilization of
the services of all discriminatees who accept such offer
without discharging employees who survived the July 11,
1968, reduction in force and have continued in
Respondent 's employ ever since , Respondent may select
from the total group composed of discriminatees and
retained employees those persons it will employ
immediately by use of a nondiscriminatory, systematic
plan of its choice. If Respondent elects this option, place
and names of all discriminatees who do not qualify for
immediate reinstatement on a preferential hiring list and
recall them to their former or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges as jobs become available and before
the recall or hire of any other person.
(b) Notify any of the 41 men whose names are listed on
the notice marked "Appendix" attached hereto who are
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
records, social security payment records, timecards,
personnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this Recommended Order.
(d) Post at its plant in Washington, North Carolina,
copies of the attached notice marked "Appendix."'•
Copies of such notice, on forms to be provided by the
Regional Director for Region 11, after being duly signed
by an authorized representative of Respondent , shall be
posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily placed . Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
"In the event that the Recommended Order is adopted by the Board, the
words "this notice is posted by order of the National Labor Relations
Board after a trial at which all sides had the chance to give evidence, the
National Labor Relations Board found that we, J. A. Hackney & Sons,
Inc., violated the National Labor Relations Act, and ordered us to post
this notice ," shall be substituted for the words "Pursuant to the
Recommended Order of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that," in the notice. In the
further event that the Board's order is enforced by a decree of the United
States Court of Appeals , the words "this notice is posted by order of the
United States Court of Appeals " shall be substituted for the words "this
notice is posted by order of the National Labor Relations Board."
J. A. HACKNEY & SONS
(e) Notify the Regional Director for Region 11 in
writing, within 20 days from the date of receipt of this
Decision , what steps Respondent has taken to comply
herewith.'
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges that Cecil Sullivan interrogated
employees on or about June 26 , 1968, and that
Respondent promised and granted benefits to employees
to spy upon and report the union activities of other
employees , threatened to discharge prounion employees,
harrassed discharged prounion employees at their new
places of employment , warned prounion employees that
the best thing they could do was to leave town, and
attempted to interfere with its employees ' right to attend
union meetings.
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read ; "Notify the Regional Director for
Region 11 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
The Act gives all employees these rights:
To engage in self-organization
To form , join, or help unions
To bargain collectively through a representative of
their own choosing.
To act together for collective bargaining or other
aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT ask you questions about your union
activities.
WE WILL NOT spy on your union activities.
WE WILL NOT threaten to close our plant if you
decide you want International Chemical Workers
Union , AFL-CIO, or any other union to represent you
in bargaining with us.
WE WILL permit you to wear union insignia in our
plant and WILL NOT keep any record of who does or
who does not.
WE WILL NOT tell you that your union activities have
caused serious and adverse consequences.
WE WILL NOT increase your wage rates or grant you
any other benefits in order to induce you not to engage
in union activities.
WE WILL immediately offer to reinstate each of the
following named persons to the job he held on July 11,
1968, or one substantially equivalent to it without any
75
change in his seniority or other privileges he enjoyed
before we discharged him and WE WILL pay to each of
them any money he lost as a result of our
discrimination against him , with interest at 6 percent:
Eddie Earl Alligood Paul Hobbs
Wayne D. Barrett Bert Guy Hodges
Henry Marshall Beachman Larry W. Hodges
Douglas Mack Bell Louis W. Martin
Wayne Berry Amos Ray McLawhorn
Lacy R. Boyd, Jr. Johnny McRoy
Allen Brooks, Jr. Phillip F. Payne
Bobby Ray Buck Clifton Lee Peartree
William Carlton Clark Eddie C. Peartree
James L. Cox Carlton Roebuck
Terry W. Cutler Robert A. Slusher
Walter G. Davenport Dewey Harold Spruill
Billy Dixon Ronald T. Tetterton
Reuben Ederon William T. Tetterton,
III
James T. Edwards Billy L. Tyre
Leland Ellis Randol Williams
Grady Engalls Phillip Wiggins
Robert Lee Garnett Leroy T. Woolard
McDonald Gautier, III Heber Wallace
Larry Harris Bobby Woolard
Ferel Rowe
If there are not enough jobs immediately available to
take care of all the men on the above list who accept
our offer, WE WILL prepare a preferential hiring list
containing the names of those who do not return to
work right away and WE WILL recall all of the men on
that list before we recall or hire anybody else for jobs
which men on the list can perform.
WE WILL inform any of the men on the above list
who are presently serving in the Armed Forces of the
United States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
All of our employees are free to become or refrain
from becoming members of International Chemical
Workers Union, AFL-CIO, or any other labor
organization.
Dated By
J. A. HACKNEY & SONS,
INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 1624 Wachovia
Building , 301 North Main Street, Winston-Salem, North
Carolina, Telephone 723-2303.