J. Duncan Co.

National Labor Relations Board - Board Decisions

Jun 10, 1966

159 N.L.R.B. 112 (N.L.R.B. 1966)

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer may subcontract work when all of his regular employ-
ees are working, except that in no event shall road work presently
performed or runs established during the life of this Agreement be
farmed out. No dock work shall be farmed out except for existing
situations established by agreed-to-past practices.
Occasional overflow loads may be delivered by drivers other than
the Employer's employees provided that this shall not be used as a
subterfuge to violate the provisions of this Agreement. Loads may
also be delivered by other agreed-to-methods or as presently agreed to.
The normal, orderly interlining of freight for peddle on an occa-
sional basis, where there are parallel rights, and when not for the
purpose of evading this Agreement shall be permitted. Alleged
violations of this provision shall be submitted to the grievance
procedure.
J. Duncan Company and United Steelworkers of America, AFL-
CIO. Cases 1-CA-5032, 5111, and I -RC-8468. June 10,1966
DECISION AND ORDER
On February 18, 1966, Trial Examiner Thomas A. Ricci issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in 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 attached Trial
Examiner's Decision. He also found that the Respondent had not
engaged in certain other unfair labor practices and recommended that
the complaint be dismissed with respect thereto. Thereafter, the
Respondent, the General Counsel, and the Charging Party filed
exceptions to the Trial Examiner's Decision and supporting briefs.
Pursuant 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 proceeding to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, to the extent consistent
herewith.
1. We agree with the Trial Examiner that the Respondent engaged
in independent violations of Section 8(a) (1) of the Act and that it
159 NLRB No. 3:
J. DUNCAN COMPANY 113
discharged employees Malcolm, Sweeney, and Johnson in violation of
,Section 8(a) (3) and (1) of the Act. We also agree with the Trial
Examiner that the Respondent did not unlawfully discriminate with
regard to the employment of certain other employees.
2. The Trial Examiner found that the Respondent did not violate
Section 8(a) (5) by its refusal to bargain with the Union. We do
not agree.
On June 2, 1965, the Respondent received the Union's letter in
which the Union claimed to represent a majority of the Respondent's
-employees in an admittedly appropriate unit and requested recogni-
tion as the bargaining representative for such employees. The
Respondent did not reply to this letter. As found by the Trial
Examiner, between June 2 and July 26, 1965, when the election
agreed to on July 17 was lost by the Union, the Respondent engaged
in considerable unlawful conduct, including the discharge of three
employees, one of whom was Johnson, the principal proponent of the
Union., Contrary to the complaint, which alleges that the Union
represented a majority of the Respondent's employees on June 2 and
that the Respondent's refusal to recognize the Union on and after
that date was in violation of Section 8(a) (5) and (1) of the Act, the
Trial Examiner recommended that such allegation of the complaint
be dismissed because he found that the Union did not represent a
majority of employees on the critical date. He stated that if the
evidence had established the Union's majority status, he "would
unhesitantly conclude, in the light of the unfair labor practices com-
mitted, that the Respondent's failure to bargain was bottomed upon
rejection of the principle of collective bargaining and a violation of
the statute." For the reasons discussed below, we believe that the
evidence adequately establishes the Union's majority status.
The evidence in support of the Union's claim to majority status
was presented at the hearing in the form of 24 authorization cards;
there are 29 employees in the bargaining unit. These cards state
unambiguously that the signer requests membership in the Union and
:authorizes it to represent him for the purpose of collective bargain-
ing. The Trial Examiner found that 14 of the cards-one short of a
majority-were properly authenticated at the hearing but that there
was insufficient evidence to establish the validity of any of the
remaining 10 cards.
i The Union filed timely objections to conduct affecting the results of the election, alleg-
ing that the Respondent engaged in unlawful acts of interference which parallel Respond-
ent's conduct herein found violative of Section 8(a) (1) and (3) of the Act. We agree
with the Trial Examiner that the Union's objections are meritorious and with his recom-
mendation that the election be set aside. In view of our decision reached herein, we do
not adopt his recommendation that a new election be conducted.
243-084--67-vol. 159-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of the aforementioned 14 cards, 1 was signed by employee John-
son and the other 13 were signed by employees whose signatures were
obtained by Johnson; each of them testified to the verification of his
signature. Clearly, the Trial Examiner properly counted these 14
cards as valid authorizations of the the Union.
With regard to the remaining 10 cards, Johnson testified that each
one was signed in his presence. Those whose signatures appear on
these cards, however, did not testify at the hearing and the Trial
Examiner was not persuaded by Johnson's testimony alone as to the
validity of these cards. We believe that the evidence warrants count-
ing these cards in support of the Union's majority.
Johnson's testimony was accepted by the Trial Examiner as to
other issues in the case. While his testimony regarding the solicita-
tion of authorization cards was less satisfactory, we do not find it
either implausible or unbelievable. Johnson was testifying to card
signings which occurred some 6 months prior to the hearing. It is
understandable that he was unable to remember where, and the hour
of the day, each card was signed. But he did recall that some cards
were signed in the plant, some outside, and some at employee Arline's
house; and he testified of various places where certain named employ-
ees signed their cards. Of the 13 employees who appeared at the hear-
ing to identify their signatures on the cards, 12 of them who were
asked about the matter corroborated Johnson's testimony that he was
present when they signed. His testimony that lie witnessed the sign-
ing of the other 10 cards is in no way contradicted or seriously
inlpuo,lled by other evidence appearing in the record or in the Trial
Examiner's account of the hearing.2 As the Trial Examiner recog-
nizecl, Persons bearing the names shown on the cards in question do
appear on the company payroll summary received in evidence. And
the Respondent, undoubtedly in possession of office documents bear-
ing the genuine signatures of all employees, did not come forward
to disprove .Johnson's testimony."
On the basis of the facts in this case, we find that, on June 2, the
Union represented a majority of the Respondent's employees in an
appropriate bargaining unit. Like the Trial Examiner, we further
believe that the Respondent's refusal to recognize and deal with the
Union on and after that date was not predicated upon any good-
faith doubt of the Unions majority status. Accordingly, by such
refusal, the Respondent violated its collective-bargaining obligation
as prescribed by Section 8(a) (5) and (1) of the Act. In the cir-
cumstances, we shall issue the customary order requiring the Respond-
ent to bargain with the Union.
2 When asked whether he witnessed the signing of a 25th card , Johnson replied that he
was not sure about that particular card and the General Counsel withdrew it
J. DUNCAN COMPANY 115
Additional Conclusions of Law
1. All production and maintenance employees at the Respondent's
Everett, Massachusetts, plant, including truckdrivers, but excluding
office clerical employees, professional employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b) of
the Act.
2. On and after June 2, 1965, the Union has been the exclusive
bargaining representative of all of the Respondent's employees in the
aforesaid appropriate -uiit.
3. By its admitted refusal to bargain with the Union with respect
to wages, hours, and working conditions, 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.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board adopted as its Order
the Recommended Order of the Trial Examiner, as modified herein,
and orders that the Respondent, J. Duncan Company, Everett, Mas-
sachusetts, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified:
1. Add the following as paragraph 1(b) to the Trial Examiner's
Recommended Order, the present paragraph 1(b) being renumbered
1(c) :
"(b) Refusing to bargain collectively with the Union as the exclu-
sive representative of its employees in the following appropriate
unit :
All production and maintenance employees at the Employer's Ever-
ett, Massachusetts, plant, including truckdrivers, but excluding office
clerical employees, professional employees, guards, and all supervi-
sors as defined in the Act.
2. Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order, the present paragraphs 2(b), (c), and (d)
being renumbered 2(c), (d), and (e) :
"(b) Upon request, bargain collectively with the Union as the
exclusive bargaining representative of the Respondent's employees in
the unit found appropriate with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment, and
embody in a signed agreement any understanding reached."
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Add the following under the last indented paragraph of the
notice:
WE WILL, upon request, bargain collectively with the Union as
the exclusive bargaining representative of our employees in the
unit described below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and
WILL embody in a signed agreement any understanding reached
The bargaining unit is:
All production and maintenance employees of this Employer
at its Everett, Massachusetts, plant, including truckdrivers,
but excluding office clerical employees, professional employ-
ees, guards, and all supervisors as defined in the Act.
[The Board dismissed the petition in Case 1-RC-8468.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These cases , involving objections to conduct affecting the results of an election,
the eligibility of employees whose ballots were challenged in that election, and
unfair labor practice charges, were heard by Trial Examiner Thomas A. Ricci at
Boston , Massachusetts , on December 1, 2, 3, 14 , and 15, 1965, pursuant to an
amended complaint issued October 8, 1965 , and an order of consolidation dated
the same day. The complaint alleges violations of Section 8(a)(1), (3 ), and (5)
of the Act . Briefs were filed after the close of the hearing by the General Coun-
sel and the Respondent.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
J. Duncan Company , a Massachusetts corporation , maintains its principal office
and place of business in the city of Everett , in the Commonwealth of Massa-
chusetts, where it is engaged in galvanizing and coating metal products . It annu-
ally performs services of a value in excess of $50 ,000 for certain customers each
of which annually purchases directly from outside Massachusetts materials having
a value in excess of $50 ,000. I find that the Respondent is engaged in com-
merce within the meaning of the Act and that it will effectuate the policies of the
Act to exercise jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, herein called the Union or the
Charging Party, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues presented
During the last week of May 1965, there developed among the Respondent's
approximately 30 production and maintenance employees a campaign to achieve
majority representative status ' by the Union ; a number of authorization cards were
signed by employees. The Union wrote a letter to the Company dated June 1,
demanding recognition as exclusive bargaining agent and a meeting to discuss a
possible contract ; it also filed a representation petition--Case I-CA-8468-with
the Board seeking an election among the , employees . The letter was received
by management on the morning of June 2 , and that same day employee Melvin
J. DUNCAN COMPANY . 117
Johnson, apparently the most active person in the solicitation of cards, left the Com-
pany's employ. . ' During the month of June and into July, 13 more employees were
separated from the payroll.
On July 14, the parties met in the Board's Regional Office to discuss the Union's
representation petition and they agreed on a consent election, which was held on
July 26. The results were inconclusive, with 17 challenges that could affect the
results; most of these involve the employees who had left work between June 2
and the time of the election. Their eligibility will depend on whether they main-
tained their employee status nevertheless. There were also objections filed by the
Union, charging essentially the same misconduct by the Company which is set out
as asserted unfair labor practice conduct in Cases 1-CA-5032 and 5111.
The complaint alleges that 15 employees were discharged because of their union
activity, in each instance a separate violation of Section 8(a)(3) of the Act.
Denying any illegal motivation, the Respondent contends affirmatively that some of
these left of their own accord and others were discharged for cause unrelated to
union activity. The complaint further alleges that Respondent's failure to accord
recognition to the Union in response to the demand letter of June 1, and to bar-
gain with it as requested, was based upon fundamental rejection of the statutory
principle of collective bargaining and therefore constituted an illegal refusal to
bargain in violation of Section 8(a)(5).' To this the Respondent replies that it
was willing to bargain but only on condition the Union proved its majority status;
it also disputes the assertion that the Union in fact represented a majority of the
employees within the appropriate unit on June 1 or 2.1
There are also separate allegations of coercive statements and interrogations by
management representatives violative of Section 8(a)(1) of the Act, all denied in
the answer.
B. Union activities : restraint and coercion
In the latter part of May, Melvin Johnson met James DeBow, Interna-
tional representative and organizer of the Union , who suggested Johnson try to
interest the Respondent's employees in joining his union. Encouraged by employee
response , Johnson distributed authorization cards and solicited signatures; he did
this both when he was in the plant for his own shift , at lunch , and by returning
to the plant at other hours . By the end of the month he had delivered signed
cards to DeBow, who wrote to the Company on June 1, advising it that a majority
of the employees in the plant had signed authorization cards in favor of the Union,
and requesting a meeting for purposes of negotiating a contract. The letter was
received by the Company early the next morning.
The Employer 's reaction , when it learned so formally of the union activities, is
revealed primarily through the doings of Richard Brooks, the plant manager, who,
together with his brother Barry, a vice president , and his father , David Brooks,
ran the business . Richard Brooks testified he was "shocked" when he received the
letter, and after discussing it with his father and brother, showed it to a num-
ber of employees in the shop immediately that morning . He said he talked to a
number of them and "asked if they were the ones who signed" and "what was going
on," but recalled "none" of the replies he received . After some difficulty remem-
bering names, he admitted having asked Stokes and Johnson , among other indi-
viduals, but they all denied any knowledge . It is clear, however, that the Respond-
ent did not want a union in the plant , for there is considerable testimony by
employees , much of it undenied , that the manager tried to persuade some of the
men to abandon the idea, showed them how the existing rates compared favorably
with those in other similar plants , told others they could earn more without the
Union , and exchanged hot words with organizers and employees distributing union
literature near the plant before the election.
Employee Reynolds testified he admitted signing a union card when Brooks
asked him that day, and that the manager then asked "why?" and added "if the
Union get in . . . you will be making less money ." Employee Suggs' testimony
is that Brooks told him "the Union was no good . . . that he knew we had signed
the union card." Employee Stokes said that on June 2 Brooks twice asked had he
signed a card, and , although he twice denied it , Brooks said "You'll be better off
i There is no issue as to the appropriateness of the following bargaining unit: All pro-
ductions and maintenance employees including truckdrivers of the Employer's plant located
at Everett, Massachusetts, excluding all office clerical employees, professional employees,
guards, and all supervisors as defined in the Act.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without a Union anyway . . . You'll work in the shipping room. That goes
along with management . . . You'll make more money, you know, working in the
shipping department without a Union than you will with a Union." Toward noon
that same day, still according to Stokes, Brooks told him-while pointing to John-
son-"That's the dirty rat that got him to sign those cards." Jones is still another
employee interrogated by Brooks on June 2; he, too, feigned ignorance, and the
manager then said "I know who the wise guy is now . . . Melvin Johnson."
Employee Malcolm testified he was interrogated by Brooks on June 3, and
admitted having signed a card. His testimony is that Brooks then asked him why
he wanted the Union and said "You get a lot of overtime . you can work all
the overtime you want . if the Union comes in there won't be any overtime."
About a week later employee Sharpe asked for a raise and the manager answered
. if the Union got in we would be making less money, ..."
A union meeting was held at the home of employee James Arline one evening
a few days after June 2;-he testified that Brooks told him at that time: "There's no
sense in you trying to get a meeting to your house because the boys don't want no
meeting. They don't want no Union . . . They're making more money without
the Union . . . And there's not going to be no Union. And your nephew [Melvin
Johnson], he can't go to work in the plant no more." Jake Coakley, another
employee, testified that the Monday following this meeting, Brooks asked him:
"Jake, how did the meeting go?" When Coakley asked "What meeting," the man-
ager said: "You know what meeting I'm talking about." Coakley also testified that
when asked by Brooks, at the very beginning of June, whether he had signed a
union card, he said no, and the manager replied "Jake, I'm no damn fool. The
foreman tells me everything."
Manager Brooks denied very little of all this consistent and direct testimony of
the employees. He said he never talked with employee Jones about the Union or
told him that someone was reporting union activities to him. In part because so
much of the employees' testimony is not contradicted, and in part because Manager
Brooks' demeanor and general attitude as a witness cast a heavy doubt upon his
credibility generally, I believe the employees. Brooks started by describing him-
self as a "clerk"; the fact he is operational manager and a vice president of the
Company had to be drawn from him. First he insisted he could not remember the
name of a single employee he spoke to when checking to learn who was responsible
for the Union's demand letter; little by little the names came to him. He also
repeated he could not recall what any employee had told -him, a highly improbable
assertion . Speaking of Johnson, whom he singled out as the "dirty rat," he first
denied having said "anything" to him about the Union, and in the next breath
admitted asking had he signed a union card. He did the same as to Stokes. In
his first appearance as a witness he denied speaking to Stokes of the Union ever;
days later, recalled by the Respondent, he admitted the fact. There are other
aspects of Brooks' testimony, as will be shown below, reflecting patent inconsist-
encies and implausible assertions.
In the circumstances of this case as a whole, Brooks' inquiries of the many
employees that day, or later, cannot be viewed as interrogation aimed solely at
ascertaining whether the Union in fact had been authorized by the employees, or,
as Brooks said , to verify if the letter had been sent to the wrong company alto-
gether . His attempts to persuade employees to abandon the Union, and even to
suggest, not too obliquely, that they might earn less or lose work opportunities
with a union in the plant, surely shed a significant light upon his widespread inter-
rogation. Upon the credited testimony of the employee witnesses, I find that by
the following conduct Manager Brooks, on behalf of the Respondent, violated Sec-
tion 8(a)(1) of the statute: (1) his interrogation of Johnson, Stokes, Reynolds,
Malcolm, and other employees; (2) his statements to Reynolds, Suggs, and Mal-
colm that employees would earn less with a union but more without one; and (3)
his statements to Stokes, Jones, and Jake Coakley that the manager knew which
employees were soliciting on behalf of the Union.
Employee Johnson and Organizer DeBow also related an incident that occurred
on the sidewalk in front of the plant one morning a week or so before the July 26
election. They, and perhaps others, were distributing union leaflets and Manager
Brooks arrived in due course. Johnson and DeBow both testified that Brooks
catapulted his car up to the plant and swung it into the driveway at breakneck
speed and within inches of the men as they were handing out leaflets. Each of
them described Brooks emerging from the car wrathful and furious, with a black-
jack in his hand, and striding menacingly toward the unioneers . To lend color and
J. DUNCAN COMPANY 119
persuasion to their recital, Johnson and DeBow also said. Johnson had a camera
with him, that he took a number of pictures of Brooks in this enraged state with
the deadly weapon in view, and that the photography had been successful-they
had seen the prints.
Brooks remembered the day but insisted he only drove as usual and had neither
then, nor ever, had a blackjack in his possession. Antagonistic words there were,
Brooks and his father telling the organizers to get off the property and the others
protesting their legal rights. The police were there-in a scout car; who called
them or exactly what moment they arrived, not even Solomon would be able to
decide. The entire testimony about the incident borders on the hysterical-broad-
side exaggerations coming from both sides-and reads like a police court blotter of
a Bowery brawl. No one was arrested and the police left everything peaceful.
Apparently it is the blackjack that is supposed to prove illegal coercion-in the
sense of Section 7 of the statute-by the Company upon Johnson, or other employ-
ees who may have been present. But the photographs of the lethal tool-which
alone in this confused picture could establish any objective fact-were not pro-
duced, and the union participants, although relying so heavily on the camera eye
as the real witness-gave no explanation of its mysterious absence. In view of the
Union's extreme care, in other aspects of this case, to make a record which could
later be used against the Company, the failure to produce the photographs assumes
a mortal significance. I do not believe that there was any "billy" in the picture,
and, as the evidence does not otherwise suffice to prove by substantial testimony
the commission of any unfair labor practice that day, I make no finding of viola-
tion of Section 8(a)(1) of the Act based upon whatever happened then.
C. The discharges
The record shows that during the payroll period ending June 3, 1965, 30 rank-
and-file employees worked for the Company ; these include N. M. Sullivan, the
office secretary , whose name appears on a payroll summary in evidence , and Melvin
Johnson , whose name does not appear there because he was paid off in cash on
June 2. The complaint names 14 of these 30 as having been discriminatorily dis-
charged on various specific dates during the period June 2 through July 26 ; it also
alleges that James Miskel , who did not work that week, was illegally discharged
on June 10. Of this. total of 15, 12 employees testified that they had signed union
cards, all dated between May 26 and June 1. The remaining three-James Miskel,
Theodore Moon , and Andrew Waring-did not appear at the hearing.
Immediately upon receipt of the Union 's demand of June 1, there followed the
widespread interrogation of employees by the plant manager, as detailed above.
He learned of the identity of certain card signers and the record in its entirety
warrants an inference he learned of many more than the particular employees
specially identified in the testimony . It is also clear the Company was opposed to
having a union in the plant, indeed resorted to.-violent and abusive language
toward union agents and certain employees , even threatening retaliation, to make
clear its deepseated resolve to avoid collective bargaining . With so many employ-
ees leaving the plant-for one reason or another-the payroll shrank in subsequent
weeks, dropping to only 21 production and maintenance workers for the week of
July 8. The number increased again , with continued hirings, and reached 26
employees by the July 22, week.
As the hearing progressed it began to appear clearly that some of the employees
named in the complaint had left the Company voluntarily and that others had
given good cause for dismissal . More than once the General Counsel resisted a
motion by the'Respondent to dismiss the complaint partially on such grounds. I
asked him after the close of the General Counsel's case -in-chief to state his theory
of the case . Was it a contention that the Respondent carried out a broadside pro-
gram to rid itself of those employees whom it believed to be strong union sup-
porters, so that even if in some instances nonunion employees , or even those deserv-
ing of discharge , were caught in the general sweep, all must necessarily be deemed
victims of a pervasive illegal motivation ? Or did the General Counsel argue that
in each instance of discharge the record shows affirmatively an intent to release
that particular man because of his known prounion tendency? The General Coun-
sel stated on the record that he chose not to answer this question , that he wished
not to tip his hand , but that the record as finally made would supply a rationale for
the total complaint.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his brief, filed after analysis of the record, the General Counsel hints at a
number of theories, none clearly and unequivocally stated, and,. some mutually
exclusive. One phrase says "all of the discharges and layoffs below are contami-
nated by Respondent's activities towards the Union and adherents." This means
that in no instance are the asserted grounds for discharge, however conceded or even
related by the employee himself, to be believed.. There then follows the statement
that some of the separations, not specified, should be "considered" as "discharge or
voluntary quits." Here a constructive discharge argument is injected for the first
time. If this be a serious contention it means that when one employee quit because
his request for a raise was refused, or another because, when ordered, he would
not work on the night shift for which he had been trained, the Respondent's
reason for denying the raise or for attempting to operate a night shift at all, was
to cause such unhappiness as to compel resignations. The Respondent, of course,
was never on notice that it must defend against such charges, and there is no evi-
dence at all in support. Apparently in an effort to fill this void in the record, the
General Counsel simply states that "hopelessness and despair can overtake any-
one," and that "self-doubt lurks always just beneath the surface." There is no
explanation of how such introspective analysis can prove a case in favor of the
employee who took sick one day and for 5 months thereafter was unable to do any
work; the employee did not charge the Company with responsibility for his infir-
mity. And finally, as the one employee said in the complaint to have suffered illegal
discharge, the General Counsel says in his brief: "The General Counsel takes no.
position as to his status."
The record would not support any theory that the departure of all these people
during the 11/2-month period after June 2 was part and parcel of an integrated
plan to weed out the union adherents. Several of them either quit or left the job
for various reasons unrelated to union activities. As to a few others, the record
is silent respecting the incident of their separation. And the General Counsel
agreed one should be eliminated from the complaint on the Respondent's motion
at the hearing. As to many of the persons in fact discharged Plant Manager
Brooks knew they had signed union cards; as to some others there is no direct
evidence of such knowledge on his part. An inference from the total picture that
he had such knowledge concerning these also, requires a like finding respecting
others who also signed. Earnest 'Coakley and Francis O'Gara had signed,-but were
not released. Further, as the General Counsel would have it, a total of 23 had
signed cards. For purposes of supporting an affirmative order to bargain with the
Union now, the probative evidence does not suffice for a positive finding respecting
10 of these cards. But if, as the General Counsel insists, so great a number had
signed and the manager, by his illegal interrogation, had learned all there was to
know, what reason did he have for selecting these instead of those? All the
employees discharged had signed union cards, but there can be no finding they were
the only ones to have signed. Johnson was the instigator, but the record does not
in the slightest indicate that any of the other 14 listed in the complaint can be dis-
tinguished from those who remained at work in terms of union activities. In fact,
it is not even argued that such a separation of the two groups is possible.
I do not believe there can be a finding in this case that, regardless of whether or
not there is substantial affirmative evidence that the particular individual was
selected for purposes of discouraging his own union activity, unfair labor practices
were committed with respect to all persons who were discharged or otherwise left
the Company throughout the period June 2 through July 26 2 I will therefore
appraise the evidence as it relates to each of the employees involved. In every
instance an- element' of proof is the clear opposition to union activities by the
Respondent. Some employees denied to Manager Brooks any knowledge of union
activity; the extent of his probing, plus the fact he told them he had the foreman,
or others, reporting to him, suggests he knew who the union supporters were.
However strong such a suspicion may be, it cannot satisfy a normal and logical
requirement that before it can be said a particular individual was selected on the
basis of his own union propensity, the employer must be shown, by substantial
evidence, to have known of his tendency in that direction. The point is particularly
pertinent here in view of the paucity of evidence respecting union activity within
the plant and the fact, appearing from the testimony in its entirety, that a planned
effort was made to conceal whatever signing of cards took place.
There are other pertinent facts to be considered with respect to the various indi-
vidual separations listed in the complaint.
a Great Eastern Color Lithographic Corp ., 133 NLRB 911.
J. DUNCAN COMPANY 121
1. James Miskel
Miskel last worked for the Company during the payroll week ending May 27.
The General Counsel did not oppose the Respondent's motion to dismiss the com-
plaint at the end of the Government's case, and the motion was granted. No
further reference need be made to Miskel.
2. Leon Reynolds-Ode Suggs-Theodore Moon
Reynolds and Suggs were hired on or about May 20. Throughout their employ-
ment they were assigned to the second shift, scheduled 5 days a week from 11
a.m. to 7:30 p.m. Neither ever worked a full shift; they regularly arrived between
11 and 11:30, or even after 12 noon, and they left at about 4 p.m. Reynolds put
in 4, 3, 3, 4, and 5 days of work during the successive weeks he was with the Com-
pany. Suggs came to work 4, 3, 3, 3, and 5 days during his successive weeks before
discharge. Each of them had jobs elsewhere in galvanizing plants doing the same
kind of work as here.
Reynolds and Suggs were discharged on June 18 and the complaint alleges the
unfair labor practice was committed that day as to them. Both men testified they
were told by Plant Manager Brooks that day the reason was because work was
slow. The manager said he hired them originally because of a special heavy
account, and tolerated their indifference to hours-coming late, leaving early, and
only working those days they wished-because of the pressing temporary need.
He testified, and I believe this, that he learned of the men's other employments
and told them he could no longer permit them to work "partial shifts" because the
work required team arrangements, that he offered to keep them if they would agree
to arrive on time and put in a full 8 hours, and that they refused.
If the record stopped at this point concerning these two men, clearly it would
not support the complaint allegation that they were- illegally discharged on June 18,
even though Brooks had learned, about 3 weeks earlier, that each had signed a
union card, because he asked one and told the other he knew who had signed.
There simply is no substantial evidence of prohibited motivation in the discharges.
Suggs went on to say, however, that he had been told by the manager to return
to work on a Monday, which he said was the day of the election. He then added
that the Friday before his scheduled return, "he went" to talk to Brooks and that
Brooks told him the election would take place on Monday and he "didn't want me
around, to come in Tuesday." Suggs ended by saying that he voted that Monday
but never returned to the plant. Reynolds testified that because Brooks had sug-
gested he "get in touch" for later rehire, he returned "after a few days," or "3
days" later, and was told by Brooks "don't be around Monday . . . there was
going to be voting for the Union." He never came back to work either.
There is no allegation that apart from what may have happened on June 18,
when these men were discharged , the Respondent illegally refused to hire them
about the time of the union election on July 26. Certainly the Respondent was
not given to understand that it should defend against such a charge. The plant
manager said he never saw Reynolds or Suggs again after June 18. There are
inherent weaknesses in their stories. They both had jobs elsewhere, they knew the
Company could not operate partial shifts for them, and they did not say at the
hearing they ever indicated to Brooks a change of plans to work full time here.
Reynolds recollection was unreliable. He placed Brooks' statement not to come
on Monday at 3 days after his discharge, or on June 21. But the election was held
a month later. If Brooks had told Suggs to report on Monday for work, why did
the employee go to see him at all that Friday? Neither man was eligible to vote
because July 8 was the cutoff date'for eligibility. And, even assuming Brooks told
them not to report that particular Monday-a finding I cannot make on such tes-
timony-it could as well have been intended to avoid confusion, for he did tell
Suggs to report Tuesday. As both men were ineligible to vote in the election,
Brooks had no reason to keep them away from the voting booth.
I think these two men-Reynolds and Suggs-were straining at the truth, if not
worse; and I conclude, on the total record, that the General Counsel has not proved
the allegation they suffered illegal discrimination in employment.
Moon did not appear at the hearing. All the record shows as to him is that he
was released together with Reynolds and Suggs and later rehired when he agreed
to work full time. Accordingly, I shall recommend dismissal of the complaint as
to Reynolds, Suggs, and Moon.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. ' Melvin Sharpe
In about the first week of June , Melvin Sharpe asked the manager for a raise,
but Brooks said the Company could not afford it. There is no need to detail the
testimony of either Sharpe or Brooks about this man's separation from the Com-
pany, for Sharpe testified directly that he quit because he was not given the raise.
For several days after his request had been turned down , he spent the morning
looking for work and only reported at the plant about noon.instead of 7 a.m. All
this without bothering to tell anyone of the Company, or to request permission.
He found a job, again came late , told Brooks he was leaving, and the manager
drove him to the station . ' I shall recommend dismissal of this allegation of the
complaint.
4. Herbert Bryson
Bryson testified that about June 24 Manager Brooks telephoned him at home
to say' he need not report, that he ,had been warned of his lateness in coming to
work, and that for that reason he was discharged. Bryson added that there was
no mention of the Union when he was released. The complaint alleges that he
was that day discharged because of his union activities. There is no direct evidence
the Company knew he had signed a union card.
The Respondent asserts this man-was released because of his bad reporting
record, and there is much evidence supporting the affirmative defense. Bryson
admitted having been late four.times, but his timecards show many more occasions
when-he was late reporting by about a half hour, when he was with the 11 a.m.
shift. He said he had been warned about this and even told he would be "dis-
charged" if he came late again. He 'said he once telephoned for permission to
report late but was refused the request. He gave reason for the Respondent to be
dissatisfied with him . On one occasion , after the union campaign had started,
Brooks told him to move to the kettle and work there, a spot where he had worked
previously. He answered his superior by saying "I'm going home at 12 o'clock,"
and left. Brooks answered him with "if the Union gets in you won't be able to
go home at 12 o'clock." Bryson's indifference to orders never left him. When be
was offered full reinstatement in October and assigned to work in the backroom,
work he ,had also previously done, he refused to do so because he did not want
to work together with one Tino Amato, another employee.
This evidence is insufficient to support the allegation Bryson was illegally dis-
charged in June. Like a few others he added he returned to the plant "at a later
date" looking for work and' that Brooks told him "don't come in on voting day
... Come in Thursday, and I'll talk to you." He never bothered to return for
work. I shall recommend dismissal of this allegation of the complaint also.
5. Jake Coakley
Jake Coakley started with the Company in February or March. Shortly there-
after he asked for a raise and Brooks suggested he go to the night shift, where a
good man was needed and where he could earn more money. Although reluctant
to work nights because he had recently been married, Coakley accepted the assign-
ment and received a 15-cent-per-hour raise. It was while he was on the night
shift that Brooks asked him had he signed a union card; Coakley said no. Within
a week he asked to be returned to the day shift and Brooks obliged him. He told
the man, however, that his pay would be reduced by the 10-cent differential paid
night men, but that he could retain 5 cents of the raise he had received. Coakley
insisted on keeping the entire 15 cents and Brooks said it was take it or leave it.
Coakley testified that at that point he decided to, "punch out," and he did. He
was paid off then and there.
I find that this man voluntarily quit his employment and that there was no rela-
tionship between his departure and his union activities or the union activities of
other employees. I shall therefore recommend dismissal as to him.
6. Bradford Stokes
There is a lesson to be learned by the employees in this case. Just as employers
have no right to treat their workmen harshly, or to hurt them in their employment
because they choose to join or organize unions, employees in turn are not priv-
ileged to behave arrogantly, or disrespectfully toward their employer, or to disobey
proper work orders, merely because they have joined a union and are protected by
law against improper treatment at the hands of management. Bryson disregarded
J. DUNCAN COMPANY 123
his employer's instructions and warnings.. Stokes, whose story follows, is another
case-in point. If these young men believe union membership to be a license for
discourtesy and disobedience on-the job, they must learn otherwise.
Stokes started early in the year 1965 with the Company,' and because he is a
competent man was soon made foreman on the night shift, with ~his pay 'raised
from $1.85 to $2 per hour. He worked with five other men from 11 p.m. to 7 a.m.
With time there was not enough work for the night shift and Manager Brooks
transferred him to the shipping department, where he stayed perhaps 2 weeks.
From there he went to the 4 to 12 afternoon shift; his pay was not reduced. Both
Stokes and Brooks were uncertain as to precisely how long the employee stayed on
this shift until his discharge. They also disagreed somewhat concerning when it
was that the Company decided to reestablish, the night shift and return Stokes there
as foreman to run it. Stokes said Brooks began to ask him to return to the night
shift as far back as April; Brooks said he spoke to the man continuously during the
2 weeks before -June 16. Their varying recollections create no significant issue, for
both agreed that for several weeks before mid-June Brooks again and again told
Stokes the night -shift must be started anew and he must join it, and that Stokes
in every instance refused.
There is a further conflict in their testimony, Stokes saying he was discharged
and the manager testifying he quit. In view of the admitted disagreement between
the men-the one point on which their testimony is in harmony-the manager
wanting him to work on the night shift and the employee adamantly resisting, it
is relatively immaterial whether Brooks said "get your money," or Stokes said, "I
quit." Stokes conceded, as on the record of his own story he could hardly avoid,
that- the reason why he left was because he did not want to work nights. I must
assume, although the General Counsel did not state the contention explicitly; that,
the theory of illegality here is that Brooks, cloaking an ulterior antiunion motive,
advanced the professed need of a restored night shift' as a pretext to get rid of the
man, whether by a quitting or an out-and-out discharge..
When Brooks received the Union's demand letter on June 2 he asked Stokes,
among 'other things, whether he had signed the card; Stokes said no. That same.
day Brooks tried to convince Stokes to the view a union was undesirable or unnec-
essary. -'According to Stokes' testimony, which I credit, Brooks told him "he would
be better off without a union . . . along with management . you will make
more money, you know, working in the shipping department without a union than
you will with a union." But, as Stokes also related, Brooks had already for some
time been asking him to renew the night shift; the idea of changing shifts therefore
was not an afterthought designed to provoke either discharge-or resignation. There
is no direct evidence of an intent to bring about Stokes' separation because of his
individual union interests; indeed it cannot be said on this record that the employee
made clear any positive inclination on his part. The question thus becomes
whether the suspicion of pinpointed animus against this man, arising from Brooks'
antiunion feeling generally, constitues substantial evidence supporting the com-
plaint allegation in the face of the persuasive indications of discharge for cause.
Fairness requires that Stokes' conduct be viewed in proper light.
Almost in bragging tones he spoke of having answered, "Oh, yah," when Brooks
kept repeating he must go on the night shift, or when the manager said "We need
you there." 3 He said he spoke thus to his employer a number of times-"six or
seven times." A conference at the Board's Regional Office-or possibly a formal
hearing on the Union's petition for a representation election--where agents of the
Company and of the Union were in attendance, took place the day after Stokes left
his job. He testified that during the meeting he told the Brooks people-father and
son-that he was reporting for work at 11 p.m. that night. He did not say he
asked could he return, but simply that he told them he was coming. In fact there
was no night shift at work and there had been none for several, weeks, for the very
reason that Stokes had refused the assignment, and Stokes knew this. Manager
Brooks answered him only that he had quit.
From Stokes' testimony:
Well, yes Richard Brooks, he came to me and he said "You have got to go on the
11 to 7 shift." I said, "Oh, yah." He said, "Yah, we got to have you." He said
it Just like that. That was all that was said at that time. Then maybe a day and
a half, two days, later be approached me again, "You got to go on the 11 to 7 shift."
All I would say is "Oh, yah." That's all. That went on for maybe three or four
times.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That night, at or about 1045, Stokes went to the plant with DeBow, the union
organizer, where they found David Brooks and his son. Now Stokes told Brooks
the Union had instructed him to report and he offered to start work then and there.
The plant was "completely closed" he said.
It is true the manager first tolerated Stokes' indifference to his request, and later
even what amounted to arrogance. He was trained for the night foreman's job, he
was being paid at that rate although performing only routine duties, and the shift
could not be reestablished without him. This is what the Company wanted him to
do and what he refused to do. That the man deserved discharge cannot be ques-
tioned. Absent positive evidence he was not discharged for this reason in the end,
and there is none in this instance, I can only conclude the complaint has not been
proved as to him. I find that it was the employee who quit, and that the Union
sent him back to the plant that night in order to perfect a later charge that it was
the Respondent which in fact discharged him. Indeed, there is virtual admission
in the General Counsel's brief that this must have been so. Commenting on the
general laxity in the Respondent's attitude toward its employees' indifference to
rules and orders, the brief says: "Certainly if discipline is not strictly enforced it
becomes more likely that any individual termination is voluntary rather than
otherwise."
7. Robert Malcolm
Malcolm was a student who had worked here before; he returned in February
1965, but only the timecards for his employment since April were placed in evi-
dence. The manager testified Malcolm studied days "and he got through school
early. He asked to come in, so I let him come in to make some overtime." Dur-
ing the entire period of 21/z months-April 1 through June 17-reflected by the
timecards in evidence, Malcolm virtually never reported for work by 3 o'clock, the
hour which Brooks said was the start of the afternoon shift. Many times he came
after 5 o'clock, often later than 4. At the other end he rarely stayed until 12:00;
his normal departure, averaged across all of the timecards, when he seems to have
worked the afternoon shift, was about 11:30. In most instances this compensated
for late arrival between 3 and 3:30 p.m. The cards also show that throughout the
period Malcolm's hours rarely conformed any period of time with any one of the
regular shifts. Sometimes be worked a broken shift Saturdays, and even Sundays.
He worked 7 days in a single week twice, 6 days three times, 5 days four times,
and 3 days in the 3 separate weeks, one of these last containing a holiday.
Plant Manager Brooks discharged Malcolm on June 19, as he arrived for his
regular shift. At the hearing Brooks stated the reason as "not working very regu-
larly; not being able to work with the shift. . . . You never depended on him."
He added Malcolm had been absent without notice the day before, and this had
triggered his decision. Malcolm admitted he had once been warned for being late,
and that he had not always called in advance to advise he would stay out. He
also testified that on other occasions he did call, to advise Brooks of his delay. As
to the discharge conversation, according to him, Brooks gave him three expressed
reasons: (1) not enough work, (2) he stayed away from work too much, and (3)
he had not called in the night before. As to his Thursday absence, Malcolm testi-
fied he had called the plant and had spoken to the manager personally to say on
Wednesday he would be out on Thursday.
This is the classic case of the employee long working in a certain way, or per-
mitting himself irregular hours, all to the knowledge of the employer; he then
joins a union , to the employer's displeasure, and is soon discharged ostensibly
because of the irregularities always accepted in the past. Brooks characterized
Malcolm's employment from the beginning by calling it "overtime" to the boy.
Despite his repeated urgings that the employee come in on time, the manager used
him as needed, often Saturdays and Sundays. He knew Malcolm was a student and
this probably explains the history of individual assignments Brooks found conven-
ient. In any event, 21/z months is a long period for Brooks to permit this work
arrangement without doing something about it, if in fact it was inconvenient and
if in fact, as he said, he started immediately to complain to Malcolm about it. And
yet, were this situation comparable to those of the employees considered above,
with only the Respondent's general union animus to offset the affirmative defense
of discharge for cause now advanced, it may well be that in this instance also the
evidence in favor of the complaint allegation would not suffice.
Toward Malcolm, however, the plant manager had evinced a more personal
animosity born of the union activity. During his extensive interrogation of employ-
ees, he said to Malcolm "You must have signed one of those cards for the Union,
J. DUNCAN COMPANY , 125
right," and the man answered yes. Brooks then asked why he wanted a union and
started discussing wages. He then added, "You get a lot of overtime. . . . You
can work all the overtime you, want. . . . If the Union comes in there won't be
,any overtime." On June 5, 2,days later, he showed Malcolm a letter of inquiry
received from the General Dynamics Company, where Malcolm had applied for a
job. Now he told Malcolm "if you vote against the Union, I'll write you an out-
standing letter of recommendation to General Dynamics." Malcolm refused _to
agree; he was never employed by General Dynamics.. -
I credit this testimony, which Manager Brooks did not deny. This means that
only 3 weeks before the discharge, Brooks was not only willing to keep Malcolm,
but even to help 'him with more overtime opportunity. The man's record was not
much better then than it became in the next 2 weeks. In view of Brooks' expressed
determination to punish Malcolm for his adherence to the Union, of the fact he
had long found Malcolm's irregular attendance insufficient reason to release him
and on the record of the Respondent's animosity toward the idea of having any
union at all, I conclude that the Respondent discharged Malcolm on June 18 to
curb his union activities and thereby violated Section 8(a) (1) and (3) of the Act.
I also find that by telling Malcolm a no vote in the election would be rewarded
with a favorable recommendation for other employment, Manager Brooks violated
Section 8(a)(1) of the statute.
8. Richard Jones
Jones worked from March 1965 until Brooks discharged him sometime in mid-
June. He does not appear to have performed work requiring any particular skill.
Jones' story is that one day Thomas, whom he referred to as a general foreman,
said to him, "I was told to inform you you are laid off . . . [for] lack of work
. keep in touch. Things should pick up." Jones telephoned Thomas a week
later to inquire and Thomas said things were still "slow." Again 2 weeks later he
spoke to Richard Brooks, the manager, about the chances for work, and was told,
still according to Jones, he had been discharged "because I cursed Tino out."
Brooks testified he discharged Jones because he used obscene language in the
plant toward other employees and toward him. He said one day Tino Amato, 17
years an employee in this plant, with whom Jones worked, told the manager he
could no longer bear Jones' offensive language and would quit. When Brooks
tried to smooth the waters between the two employees, as he continued to relate,
Jones turned on him too with dirty language, and he ordered the man to clean up
and "get your pay." Against this Jones denied at the hearing that he ever used
obscene or off-color language toward anyone.
What language offends? Who can ever know-after hearing Brooks' damning
criticism of the man and Jones' unqualified protestations of innocence-whether the
common parlance in this plant grated unduly on the sensibilities of some who spend
their days there? Other employees testified that bad language is not uncommon
among them in the plant; the work is harsh, the physical surroundings dangerous
and unclean, the employees generally without advantage of advanced education.
In short, this was not a tearoom environment. On the other hand Brooks was
given to exaggeration, as other of his testimony shows, and it would have been a
simple thing to produce Amato, whose complaint is said to have led to the dis-
charge; he did not appear to support the asserted affirmative defense.
The question, however, does not turn upon a definitive resolution of the exact
degree of rudeness that may have colored Jones' speech. Instead, as always, it is
whether the pertinent factors prove, by a preponderance of the substantial evidence,
that in fact Brooks' real reason, regardless of what he may have said at the
moment, was to exclude Jones from the plant because he favored the Union. For
such a conclusion in this instance, the General Counsel relies on the man's testi-
mony, which I believe, that 2 weeks earlier Brooks had asked him had he signed
a union card, the answer being no, and that later that same day the manager told
Jones he, Brooks, knew who the "wise guy" was, and named Melvin Johnson.
A few days later Brooks also asked Jones what he thought of the Union, and
when the employee professed not to understand the question, the manager added
"you're not kidding, because I have someone who tells me everything."
There is no significant indication in these conversations suggesting an intent to
hurt Jones personally in his employment. It may reasonably be inferred Brooks
realized from Jones' reaction that this employee was among those who had author-
ized the Union. But all this means is that Jones was one of the many whom
Brooks knew to be in favor of the Union. The theory of illegal discharge as to
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,him then necessarily becomes that once an employer has knowledge of the union
propensity of a'great nlumber.of men, and is shown to be antagonistic to the union
idea generally, if he 2 weeks later discharges any one of them the burden is on him
to prove he had sufficient reason to do so apart from any union consideration. In
the circumstances of this case the argument is not persuasive. Unless, of course,
it can be ,said-as the General Counsel alternatively seems to contend-that all the
discharges, viewed collectively, prove a broad intent to retaliate against the pro-
union segment of the work force as a whole. For reasons already stated, this
record does not support such a theory.
Suspicion apart, I find the evidence insufficient to prove the allegation that Jones
was discharged because of his union activities. I shall therefore recommend dis-
missal of the complaint as to him.
9. James Arline
It was not shown that anyone on behalf of the Company ever spoke of the Union
with Arline. He took sick one day in June and Brooks advised him to go home.
He then passed 2 weeks in the hospital. Arline said he first returned to the plant
on July 26 to vote in the election, and that about 2 weeks later he spoke to Man-
ager Brooks on the telephone. All he recalled of that conversation is that Brooks
had occasion to say to him "the weight was too heavy for me." Arline also testi-
fied that from the day of his illness in June he had never been well enough to work,
and that it was not until November 18 that his doctor released him for employ-
ment. In October the Respondent sent him a formal letter offering reinstatment
to his old job; learning of Arline's continued disability, Brooks asked him to obtain
a medical certificate. Arline never returned to the plant.
I shall recommend dismissal of the complaint with respect to this employee also.
10. Lee Mitchell
Mitchell was discharged. at the end of June when he and Waring were called to
the office for that purpose. The manager had asked him in the first week of the
month did he "know anything about the Union trying to get in . ," and Mitchell
had laughingly replied no. Mitchell testified he arrived late on the day of the
discharge and that Brooks said to him "you're late . . . I see you're late more and
more." Mitchell recalled nothing else of this last conversation and added he
remembered nothing at all of what the manager may have said to Waring, appar-
ently also discharged that day. He also added that "once or twice" his attention
had been called to the fact he was coming in late, "Richard told me once, and
Barry told me twice."
I find the evidence insufficient to prove the complaint allegation that Mitchell
was discharged because of his union activities and shall therefore recommend dis-
missal of the complaint as to him.
11. Andrew Waring .
This employee did not appear at the hearing and there is no evidence worthy of
note indicating illegal discrimination against him. I shall recommend dismissal
of the complaint with respect to Waring also.
12. Donald Sweeney
Sweeney started with the Company in February and his last day at work was
Friday, June 4. The following Monday he called the plant to report he would not
be in that day as scheduled, nor the rest of the week, because his son was ill and
his assistance was needed at home. He testified that later that same day Manager
Brooks telephoned his wife to say her husband was discharged for absenteeism.
Sweeney called back and asked Brooks what was "the real reason" for the dis-
charge. According to Sweeney, the manager then said: "You know what the real
reason is, Sweeney. You're a Union agitator with them things you had in your
locker." Sweeney protested he was not for the Union but only for himself.
Brooks then said, still according to the employee's testimony: "If you're for Donald
Sweeney, you come in and talk to me Monday because the only thing I want to
know is who are the leaders of the Union."
Sweeney was not able to report the next Monday because his son was still ill
and his wife out at work; this time he telephoned White, whom he called a fore-
J. DUNCAN COMPANY, 127
man, to say he would come Friday instead. He came and spoke to Brooks in the
office. Sweeney went on to- testify that Brooks now asked "if I was going to tell
him the names of the union men in the shop. He, also asked me if Frank Amato,
Bradford Stokes and Ernest Jordan were leaders of the Union to which I replied,
`I do not know.' He said, `Well, you know something.' " Brooks went on to
explain how Sweeney was earning more money than union galvanizers in Baltimore,
and then said: "You still can't help me? . . . If you can't help me, Sweeney, I
can't help you. I'm sorry." Sweeney was not returned to work that day.
In October Sweeney was reinstated to his regular job.
When first called by the General Counsel at the start of the hearing to explain
the circumstances of Sweeney's separation, Brooks simply said the man "quit," that
he had telephoned one Monday to say his child was ill, that he sent no other word
to the plant thereafter, and that he returned Friday only to pick up the money
due him. "That was the last time I saw Donald Sweeney until recently."
As a witness for the Respondent later, Brooks expanded on his earlier story.
He said that on a Thursday, after Sweeney had reported his child's illness and the
necessity for remaining at home for a while, Mrs. Sweeney called the plant; Brooks
did not relate why she called or what she said, but only that he told her "I haven't
heard from Donald at all." Immediately following this answer, Brooks offered the
following statement from the witness stand: "I figured he quit, and, if he didn't
quit, he was discharged for not calling in because he was doing the same thing he
did when Brad Stokes fired him and the same excuse that he was taking his child
to the doctor's." The record shows that Sweeney had been discharged one Friday
some months earlier because he had been out to take care of his child; on that
occasion he telephoned Brooks the immediately following Monday, asked to be
returned, and was recalled immediately.
In substance, I credit the testimony of Sweeney concerning his conversations
with the plant manager as to the reason for his discharge and as to the fact he was
released and did not voluntarily quit. As in much other, of his testimony, when
explaining the Sweeney discharge Brooks was again evasive, inconsistent, and even
unintelligible. He reversed himself somewhat; the admission that Mrs. Sweeney
called him while Sweeney was at home can only be explained consistently with the
employee's testimony that Brooks told her he was discharged for absenteeism.
Indeed, Brooks' equivocal statement that Sweeney was either discharged or quit
compels, the finding.4 Sweeney was a little confused in recalling which Monday
or which Friday it was that he had his talks with the manager, but that he had such
conversations I do believe. Moreover, his testimony of what Brooks said about
his concern with identifying the union men, is consistent with what Brooks said
to several other employees about this time. -
It is true Sweeney was absent from work on occasion, but the Company did not
find his irregular attendance sufficient reason to discharge him in the past. He had
been quickly recalled once before for the same sort of necessary absence. With
Sweeney failing twice during that last week to cooperate with the manager by
informing on the union activities of others, there can be no question as to why
now his absence became sufficient reason for his discharge. I credit Sweeney's
testimony that Brooks told him directly, in explaining the "real" reason for the
discharge, that he was "a union agitator." I find on the record in its entirety that
the Respondent discharged him because of his union activities and thereby violated
Section 8(a)(3) of the Act.
13. Melvin Johnson
Johnson was responsible for the birth of organizational activities in the plant;
whatever weaknesses there may be in his testimony of having seen virtually every
employee who signed a union card do so, there can be no question that he was
present when many men signed and that he was the principal actor in the affair
throughout the week immediately preceding receipt of the Union's demand letter
early on the morning of June 2. It was that day that Plant Manager Brooks,
"shocked," as he said, by the discovery, made every effort to learn who had started
all this. And it is clear that in his mind he concluded Johnson was the man. As
In the teeth of the manager's direct examination, the following question was put by
Respondent's counsel:
Q And then on the following Friday after you told his wife that he had been dis-
charged for being absent, not reporting in, he called you on the following Friday?
A. Yes, sir.
128 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
already set out above , while Johnson was still working that day the manager told
Stokes that Johnson was the "dirty rat" who was obtaining signatures ; he also said
to Jones, who pretended ignorance of the Union , that Johnson , was the "wise guy."
Johnson hurt his back while working that afternoon and Brooks drove him to
the doctor for an examination . When they returned to the plant Johnson was paid
off in cash and left the job . There is a direct conflict in the testimony between
them . Johnson testified that 15 minutes . after they r reached the place of work,
Brooks emerged from the office and, told him • "Mel, I have to let you- go, because
you had an accident before. You had several accidents before, and our insurance
rate will go up , and this is none [sic ] known as accident prone ." Johnson was
brought to the office where Brooks had his earned pay calculated . As Johnson was
leaving, Brooks asked did he understand why he was being released , and Johnson
said yes. "Because you're accident prone," repeated Brooks. '
Brooks gave two versions of the terminal incident . At the start of the hearing
he first tried to evade a direct answer as to what was said . "Well, he was quite
annoyed . He was hurt previously a few times within the plant itself . The job he
had was as the utilityman and the certain other positions because he wasn't there
long enough to have one specific job or certain responsibility within the plant, and,
of course , he was utilized in different areas. I gather he hurt himself before. He
was out." Asked to be more precise as to what was said , Brooks then answered:
"I'm'telling about the conversation . . I never said a word . I'll answer more
direct. He quit." Finally, he quoted Johnson as saying "the work was too heavy
', and that then he told the man "all right . Get your check."
Two weeks later, as a defense witness , Brooks recalled Johnson as having said:
"This work's not for me . Give me my check . I'm through."
One of the two versions-either that Johnson quit or that he was discharged-
must be true . And resolution of the question requires consideration of both the
comparative credibility of Brooks and Johnson as witnesses , and the , inherent proba-
bility of what most likely happened in the light of what went on between the two'
men that day , starting early in the morning and up to the moment when Johnson
left the premises.
Johnson told a long story of harassment , continuous shifting of specific work
orders, direct and subtle questioning about his participation in the union cam-
paign , constant provocation to quarrel , and deliberate subjection to unpleasant
and unhealthy work duties throughout the day. He was a utilityman , normally
used wherever unskilled work was to be done. At the start ' of the shift Brookss,
placed him in the shipping department . Soon the Union 's demand letter arrived
and the manager started questioning employees about it. When he reached John-
son, he said : "Hey, Mel, pretty smart ." Johnson professed ignorance and Brooks.
said : "You know what I'm talking about . . . pretty smart . You are about the
only guy in here who could do this . . . you know about this . This concerns the
Union ." Within minutes he was back to say: "Mel , how could you, do this to us?"
With Johnson again saying he did not understand , Brooks said : "Oh, come on, Mel.
You know what I'm talking about ." Again and again , as Johnson related , Brooks
returned to him during the day to continue the same indirect conversation. "Who
are you working for? .. . Are you working for the Union ? Are you working
for CORE?" And again : "Come on , Mel, who are you working for? ... bow
much are you making? . . Look, let's make some kind of a deal . . . I can
give you a better job . I can make you foreman . . . I can, give you more
money."
Soon Brooks ordered Johnson to leave the shipping department and' start carry-
ing metal from the yard outside into the building . Johnson said the accumulated
material was too much for him, but he doggedly did as he was told'. Later Brooks
sent Bryson to help and still continued the uninterrupted heckling, with "who are
you working for? . . . can 't we make some kind of a deal . . . you're a very
bright boy ." Johnson never varied from his feigned position of ignorance and
compliance. -
Shortly after lunch it started to rain , with Johnson still working outdoors; the
rain became heavy, but Brooks ordered him to keep on working . The metal prod-
ucts he lifted and carried inside were of varying weight , some as heavy as 40 or
100 pounds . There was a mechanical hoist normally used for this purpose, but
Brooks ordered him that day not to use it, and he did not . He had no raincoat and
the Company does not supply any for the men . As the afternoon wore on, Brooks
told Johnson to come inside and do something in the pickling department. In short
order, he directed the man to go outside again. At about the same time Moccia,
the maintenance supervisor, asked Johnson to assist with holding a certain pipe.
J. DUNCAN COMPANY 129,
Johnson, in a quandry; " asked what was he supposed to do with such conflicting
orders? But Moccia simply said ' he was doing only what the manager ordered.
When Johnson complained he could only do one thing at a time , Barry Brooks, the
manager's brother , said nothing` and walked away, while the manager continued
with: "My people want to help your people out. We're brothers. [Mr. Johnson
and many of the employees are Negroes.] We shouldn't feel that way, toward each
other how much do you make? ... you know that you have something to do.
with the Union." -
It was at about 3 o'clock, with Johnson still working in the rain , that his back
began to hurt and Brooks drove him to a doctor-in his car. On their way to the
doctor , still according to Johnson ; Brooks said : "Hey, Mel , let me tell you some-
thing. My people have put a lot of money in this plant . . . I just want to warn
you we 're not going to lose anything ," and Johnson answered : "There are a lot
of people getting killed every day for what they believe, so it won't make any dif-
ference to me if I get killed -for a 'cause I believe in."
The doctor examined Johnson and advised him to "put a bag" on his back when
he returned home, to sit in a straight chair and to return Friday [June 2 was a
Wednesday], ""you should be able to report to work on Monday."
As Johnson continued to testify, Brooks resumed the refrain of the all day talk
while they, drove back to the plant. "What are you doing? My people is your
people, and I don't see why you 're trying to hurt me." Johnson denied trying to hurt
anyone, and Brooks added: "Huh, we will overcome." After Johnson left the plant
that afternoon he entered a hospital, where he remained several weeks to recover.
In its totality the manager's testimony must be taken as intended to deny the
basic purport of Johnson's story that he was deliberately hounded that day for the
purpose of assuring his separation from the Company, in one way or another.
Brooks did not deny each and every phrase which Johnson charged to him, as, in
fairness; `he could not, in view of the rambling and repetitive nature of the employ-
ee's recital. That he spoke of the Union is true, for Brooks admitted that. That
he kept him at hard work in the heavy rain is also conceded; the attempt to soften
the picture by saying that Johnson could have requested the use of the manager's
personal raincoat carries little weight, long after the event, particularly in view of
the clear resentment Brooks revealed throughout against the very idea of a union
in the plant. I do deem it significant that he did not deny ordering the man not to
use the hoist where it ordinarily would be a help for such heavy lifting. And
Brooks' insistence , more than once, that during the ride to and from the doctor's
office not a word was exchanged between the two men, is too unlikely to be
believed. And finally, his admission at the start of the hearing, before the long
testimony of the employees, that it was he, the manager, who told Johnson to "get
your, check," is consistent with the employee's testimony that he was in fact dis-
charged. On the basis of the record in its entirety, and particularly of Brooks'
demeanor 'as a witness, I credit Johnson's testimony that he was discharged that
day on the ostensible ground that he was "accident prone," that throughout the
day the manager pressed him again and again for an admission that he was a union
ringleader, that the manager tried to win him away from such resolve by suggesting
improved individual conditions of employment, and that, apace with the continuing
verbal harassment, he assigned him to both exceedingly difficult and confusing
work with the hope that there would develop an objective basis for discharging
him. There is no reason to believe Brooks deliberately intended to hurt Johnson
physically; the unfortunate injury having come about, however, he seized upon it
as a fortuitous pretext to pay him off.
Moreover, in the light of Brooks' resentment against the union activity of the
,employees generally, the fact he had already singled out Johnson as the "dirty rat"
and the "wise guy" on this subject compels the conclusion he discharged the
employee not for the stated reason that was given, but to rid the plant of the
leading proponent of the Union. His statement to Arline only a few days later,
when telling Arline there would be no union in the plant, that his nephew, John-
son, "can 't go to work in the plant no more," served to confirm the finding of anti-
union motivation. I find that by discharging Johnson on June 2 the Respondent
violated Section 8(a)(3) and (1) of the statute.
, D. Complaint allegation of illegal refusal to bargin
Simultaneously with its letter dated June 1, 1965, demanding recognition and
bargaining from the Respondent, the Union filed its petition with the Board request-
243-084-67-vol. 159-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a representation election. The Company received the demand letter on June 2,
a Wednesday. As between the Company and the Union there does not appear to
have been any steps taken by either so far as the letter is concerned; the Com-
pany never replied, and the Union never again approached the Company to pursue
its demand. The representation petition was regularly processed, with a conference
(or scheduled formal hearing) attended by all parties. The,meeting ended .with a
formal consent-election agreement and the election followed on July 26. During
that meeting Albert, Respondent's counsel, asked to see the authorization cards,
and said that if he were thereby convinced of,the union majority status, he would
bargain for the Company.. He was not shown the cards and the matter ended therg.
On the grounds that the Respondent ignored the Union's assertion of majority
representative status and failed to respond to its request for a bargaining confer-
ence, the complaint alleges that the Respondent failed in its statutory duty to
recognize and deal with the majority representative of its employees and thereby
refused to bargain in violation of Section 8(a)(5) of the Act. An essential ele-
ment of proof for a finding of such an unfair labor practice is that the Union in
fact had been authorized by a majority of the employees in the appropriate unit to
bargain on their behalf at the time the demand was made upon the employer. In
this instance the time of the demand, and therefore the time of the refusal
implied in the Respondent's. silence on the matter, is June 2. The evidence intended
to establish the Union's representative strength at that moment is in the form of
24 authorization cards, ostensibly signed by employees then at work. As to the
number of employees included in the bargaining unit, a payroll sheet from the
company records was placed in evidence; it lists the employees who worked during
the payroll week ending Thursday, June 3.
The payroll summary document lists 31 names, including D. Moccia, Barry
Brooks, and N. M. Sullivan, these last three not to be counted here in the numerical
computation. Moccia was clearly shown on the records as a supervisor, Barry
Brooks is a vice president of the Company, and Sullivan is the office secretary, a
category expressly excluded by stipulation of the parties. To the remaining 28 must
he added Johnson, who worked through the day, of his discharge on June 2, the
Respondent explaining at the hearing that his name does not appear on the sum-
mary because he was paid, by check instead of in cash. The total number against
which majority status must be tested would therefore appear to be 29.
There are elements of uncertainty in this starting figure. Generally employment
in this plant is marked by a high degree of instability. The plant manager testified,
without contradiction, that for the payroll period January through September the
average complement was about 30, with 40 the maximum at any given time. He
also testified that during that period 106 additional persons worked and were either
discharged or quit. The considerable number of separations reflected above in the
discussion of the many persons allegedly discharged for improper reasons, empha-
sizes the very great, but not abnormal turnover of employees. One of the author-
ization cards placed in evidence is that of James Miskel, who was already gone
before May 28. William Hagerty worked 33 hours during the critical payroll
week but his name does not appear on any of the payroll summaries for the sub-
sequent 12 weeks. Similarly, Rufus Smith worked only 8 hours during the week
ending June 2, and never appears on the payroll records thereafter. Was he, or
Hagerty, each said to have signed authorization cards, still an employee on June 2
to be counted now? As the record stands these vagaries are of no moment to the
issue, because even assuming there were 29 production and maintenance workers
on June 2, what probative evidence there is does not suffice to prove affirmatively
that a majority in fact _had by that day signed union cards.
Johnson was offered as the first witness by the General Counsel on this subject
and he testified in robot-like fashion that he saw each of 23 employees sign cards,
in addition to having signed his own. In each case the questioning was mechanical,
conclusionary, and completely devoid, of detail. On cross-examination Johnson
repeatedly stated he could not recall where a single one of the cards had been
signed. Indeed, he started by indicating a reluctance to talk on the subject at all.
"Q. Show me which ones were signed in the shop and which ones were signed
other than in the shop. A. I made my statement that I'was present."
Again and again, with the cards in his hands, he said he did not know where any
had been signed. After several such answers he said some employees had attended
a meeting at the home of employee Arline, and he had seen Mitchell and O'Gara
there. Soon the witness added: "I don't recall where this card was signed; I don't
recall where any of the cards were signed, the place and the time." Finally, after
J. DUNCAN COMPANY 131
a considerable wait while he studied the cards in his hands, he said Amato had
signed "outside the plant ," but he knew not where, and Sharpe• in the locker room
upstairs. Johnson failed to come forward with a single detail of several which
counsel for the' Respondent called for concerning the circumstances surrounding the
signing of any cards. The witness" attitude at the hearing made clear that on this
subject he resented being questioned and could recall nothing at all.
I find that Johnson personally authorized the Union as his agent, and that 13
other employees also did so, for all 14 of these gave direct testimony at the hear-
ing while identifying their individual signed cards. I find the evidence insufficient,
however, to establish affirmatively that the remaining 10 authorization cards, which
Johnson said he saw each employee sign, in fact bear the signatures' of those
employees, or were signed upon the dates appearing on the cards. No collateral
supporting evidence, such as records of any kind, were furnished by the General
Counsel to permit a comparison of signatures. `
Johnson is a man in his mid-twenties, fairly well educated, alert, and obviously
bright. It strains credulity to believe that such a person could in fact recall, as he
said he did, each of the 23 men signing their names in his presence, and at the
same time be unable to describe a meaningful mental image of the circumstances,
place or places, or any detail as to a single one. That he knew nothing of neces-
sarily related facts is absolutely clear, for he stated again and again he could not
recall. This despite ample opportunity to use the cards in his hands as aids to his
memory. It was only after repeated failure to answer any questions at all that he
said Sharpe had signed in the locker room and Amato somewhere "outside the
plant." The cross-examining attorney did not go further and ask who was present,
or what was said at the time or times. With the witness already having volunteered
the statement he could remember nothing, not even the "time," clearly further
inquiry would have been equally fruitless.
Understandably a witness confronted with so many cards months after the events
could not reasonably be expected to bring to mind the details of signing concern-
ing all, or even any substantial number of, the cards. But it is virtually incon-
ceivable that from the many not one would ring a bell of imagery in his mind if
in truth he had seen every man sign. His utter failure of memory sheds a disturb-
ing light upon the mechanical form of the direct questioning when he simply
answered "yes" when asked had he seen this man sign, and read the date written
on the card held before his eyes to reply to the question: "When did you see him
,sign?"
Withal, were it not for his demeanor while testifying on this subject, I might
deem his testimony sufficient in view of other facts appearing in the record. He
did see perhaps 10 of the employees sign , for those employees said he was present
when they filled in their cards. Persons bearing the names shown on the cards in
question do appear on the company payroll summary received in evidence. And
the Respondent, undoubtedly in possession of office documents bearing the genuine
signatures of all employees, did not come forward to disprove Johnson's testimony.
But these indications of genuineness in the proffered cards, standing alone, would not
suffice to satisfy the primary burden always resting upon the General Counsel to
produce probative evidence, as distinguished from tangential indication of prob-
ability, to prove the truth of the heart allegation of the complaint Unless John-
son be believed in his statement that he personally saw the employees sign, there
can be no finding on this record of majority union authorization on June 2, 1965.
Johnson also spoke at length of his experience with Richard Brooks during the
major portion of a work shift on June 2, and I believe him on what happened that
day. There were others present, Brooks himself gave his version, and those events
therefore involved interplay of one story against another, a credibility question of
.another kind. A certain amount of exaggeration or color Johnson did add there,
with Brooks doing the same and more on the other side. But an element of truth
there unquestionably was in the testimony of the June 2 events in the shop. In
contrast, on the matter of the cards Johnson was totally unpersuasive to me. This
is the rare instance where the witness' manner while answering questions, both on
direct and cross examination, makes his implausible words unbelievable.
It may well be that everyone of the 24 cards in evidence was in fact signed by an
employee and on the date indicated. Perhaps the employees had signed and then
changed heart. The overall record strongly suggests that the Union, or Charging
Party, chose Johnson, who had to testify anyway because of his own discharge and
who was the most articulate of the witnesses supporting the complaint, as the neces-
sary mouthpiece to prove a majority. And I believe the Union did this knowing
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson really was not qualified. Certainly the Union knew some of the employees
it named in its charges did not belong there-see particularly Melvin Sharpe, Brad-
ford Stokes , and James Arline-yet did not hesitate to burden both the Govern-
ment and the Respondent with their' false grievances.' Johnson was International
Representative DeBow's boy-the, older man Johnson' s' unexplained "uncle by adop-
tion" after the start of the organizing campaign. And DeBow is the man who
accompanied Stokes to the plant in the middle of the night for the express purpose
of making a case against the Company. Participation in planned deceptions of
this kind does not lend credit to what is essentially the position of the Union and
its spokesmen.
As the record evidence proves only that 14'of the 29 employees then included
in the bargaining unit had authorized the Union to act as their bargaining agent,
the General Counsel has failed to satisfy the complaint allegation that the Union
in fact represented a majority at the time of the demand and refusal . Accord-
ingly, I shall recommend dismissal of the allegation that the Respondent refused
to bargain in violation of Section 8(a) (5)` of the Act. Were the record evidence
sufficient to prove majority status , I would unhesitantly conclude, in the light of the
unfair labor practices committed , that the Respondent's failure to bargain was
bottomed upon rejection of the principle of collective bargaining and a violation
of the statute.
IV. CASE 1-RC-8468; THE CHALLENGES
A number of the challenges to be resolved incidental to the union election
held in the representation proceeding on July 26, 1965, turn upon the eligibility
of employees who were not at work at the time but who are said to have been
illegally discharged before the election and therefore nevertheless eligible to cast
ballots. Of these, the following nine employees are listed in the complaint, have
been discussed above, and must be deemed to be ineligible because the complaint
allegation of illegal discharge as to them has not been sustained: Richard Jones,
Herbert Bryson, Bradford Stokes, James Arline, Lee Mitchell, Ode Suggs, Leon
Reynolds, Jake Coakley, and Theodore Moon. Accordingly I hereby recommend
that the challenges to the ballots to these nine employees be sustained.
Hector Vargas and Armando Tolero do not appear on the payroll record for
the workweek ending July 8, the eligibility period agreed upon between the
parties. There is no other evidence indicating eligibility by these two employees;
I accordingly recommend that the challenges to their eligibility also be sustained.
Felix Hernandez worked 40 hours during the workweek of July 8, 40 hours
during the workweek of July 15, 381/2 hours for the workweek ending July 22,
and 401/z hours for the workweek ending July 29. It thus appears that Her-
nandez was a regular employee entitled to cast a ballot. I accordingly recom-
mend that the challenge to his ballot be overruled and that his ballot be opened
and counted.
Robert Malcolm, Donald Sweeney, and Melvin Johnson were illegally dis-
charged before the election. Accordingly I find that they retained their employee
status and were eligible to vote in the election. I recommend that the challenges
to their ballots be overruled and that their ballots be opened and counted.
The Union challenged the ballots of Joseph White and Domenic Moccia on
the ground that they were supervisors within the meaning of the Act. Moccia
was referred to throughout the record of this consolidated proceeding a number of
times by several employees as the maintenance department supervisor. Plant
Manager Brooks testified that Moccia "went all over" the plant for many years,
had a "high degree" of general utility, and "had authority. to direct" the work of
others. The payroll records in evidence reveals that Moccia earns approximately
$120 a week for a 40-hour schedule, and at times, with overtime, is paid as high
as $230 within a single week. His basic pay rate compares approximately with
that of the plant manager himself and with that of Barry Brooks, a vice presi-
dent. This rate is considerably in excess of the general average earnings of the
rank-and-file employees as revealed in the payroll summaries in evidence. I find
on the basis of the record in its totality that Moccia is a supervisor within the
meaning of the Act and that he therefore was ineligible to vote. I recommend
that the challenge to his ballot be sustained.
Joseph White appears on the record in its totality to be an ordinary operator
in the plant; his rate of pay is about equal to that of a considerable. number of
the rank-and-file production and maintenance employees. There is an oc-
casional reference by one witness or another passingly speaking of White as a
J. DUNCAN COMPANY 133
"foreman"; one employee referred to most of, the' employees as foremen. There
is no other evidence indicating supervisory status ' in this employee . I accordingly
find that he was an eligible voter and recommend that the challenge to his ballot
be overruled and his ballot counted.
The Objections.
The Union filed objections to conduct affecting the results of the election. The
substance of these allegations of illegal interference with the election parallels
essentially the unfair labor practice allegations set out in the complaint. The
unfair labor practice findings set out above , including illegal discharge of the
principal union proponent as well as two other employees because of their union
activities , and the extensive coercive conduct by Manager Brooks at the time the
union activities came to his attention , require a finding here that the objections are
meritorious . It appears from the tally of ballots that if the above recommenda-
tions respecting the challenges ' be adopted , the count of the valid votes cast would
be adverse to the Union . Accordingly I recommend , on the basis of the merito-
rious objections filed' by the Union, that the results of the election be set aside,
and that a new election be ordered within the discretion of the Regional Director,
at such time as in his opinion the effect of the unfair labor practices shall have
been dissipated by adequate compliance with the remedial action recommended
below.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set out in section III , above , occurring in con-
nection with the operations of the Respondent set out in section I , above, have a
close, intimate , and substantial relation ' to trade, traffic, -,and . commerce among
the several States and tend to lead to labor, disputes burdening and obstructing
commerce and the free flow of commerce.
VI. THE REMEDY'
Having found that the Respondent has committed certain unfair labor practices,
I shall recommend that it be ordered to cease and desist from such conduct and
to take certain affirmative action designed to dissipate its effect . Robert Malcolm
and Melvin Johnson have never been recalled to work , although illegally dis-
charged ; they must be reinstated to their former or equivalent positions. The
Respondent must also be ordered , to make whole these employees and Donald
Sweeney, also illegally discharged, for any loss of earnings that may have suffered
in consequence of the illegal discrimination against them in their employment.
Backpay shall be computed in accordance with the ,formula prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, and the assessment of inter-
est shall be computed in the manner prescribed 'by the Board in Isis Plumbing &
Heating Co ., 138 NLRB 716. In view of the nature of the unfair labor practices
committed , the commission of similar and other unfair labor practices reasonably
may be anticipated . I shall therefore recommend that the Respondent be ordered
to cease and desist from in any manner infringing upon the rights guaranteed
to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2 (2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Robert Malcolm , Donald Sweeney, and Melvin Johnson, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act. .
4. By the foregoing conduct , by Plant Manager Richard Brooks' interrogation
of Johnson , Stokes, Reynolds , and other employees concerning their union activ-
ities, by his statements to Reynolds, Suggs, and Malcolm that employees would
earn less if the Union prevailed but more if there were no union , by his statements
to Stokes , Jones, ,and Coakley that he, the manager, knew which employees were
soliciting for the Union , and by his promise to employee Malcolm of a more
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favorably recommendation in return for a vote against the Union in the election,,
the Respondent has engaged in and " is engaging in unfair labor practices within
the meaning of Section 8(a) (1) ' of the Act.
5. The aforesaid unfair labor practices ' are unfair labor practices affecting corn=
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I ,recommend that Respondent, J. Duncan
Company, Everett, Massachusetts, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against employees because of their
exercise of the right to self-organization or to join labor organizations.
(b) Interrogating employees concerning their union activities, telling employees
that they would earn less if represented by a union, but more if not represented
by a union, telling employees that management representatives are informed as to,
the identity of employees soliciting union membership, promising better recom-
mendations to employees iii return for votes against the Union, or in any other
manner interfering with, restraining , or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to join or assist United
Steelworkers of America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in con-
certed activity for the purposes of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act, or to refrain from any or all
such activities.
2. Take the following affirmative action- which I find will effectuate the. policies
of the Act: i
(a) Offer Robert Malcolm and Melvin Johnson immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously enjoyed, and make them,
and Donald Sweeney, whole for any loss of pay they may have suffered by reasons
of the discrimination'against them, in the manner set out under the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board, or its agents for
examination and copying, all payroll" records, social security payment records,
timecards, personnel records and reports, and all records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its plant in Everett, Massachusetts, copies of the attached notice
marked "Appendix." 5 Copies of said notice, to be furnished by the Regional
Director for Region 1, shall, after duly signed by the Respondent's represent-
ative, be posted by Respondent immediately. upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to,
comply herewith.e
IT IS HEREBY FURTHER RECOMMENDED that the complaint be dismissed with respect
to the allegation that the Respondent illegally refused to bargain with the Union, and
with respect to the allegations that the Respondent discriminated illegally in em-
ployment against Richard Jones, Herbert Bryson, Bradford Stokes, Lee Mitchell, Ode
Suggs, Leon Reynolds, Jake Coakley, Theodore Moon, James Miskel, James Arline,
Andrew Waring, and Melvin Sharpe.
5In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Deoiee of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision,
and Order."
0In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
UNITED FRUIT COMPANY 135
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:
WE WILL NOT discourage membership by any of our employees in United
Steelworkers of America, AFL-CIO, or in any other labor organization, by
discharging or otherwise discriminating against employees in regard to their
hire or tenure of employment or any other term or condition of employment.
WE WILL offer Robert Malcolm and Melvin Johnson immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges previously enjoyed,
and WE WILL make them, and Donald Sweeney, whole for any loss of pay
they may have suffered as a result of the discrimination against them, in the
manner described in the Trial Examiner's Decision.
WE WILL NOT interrogate employees concerning their union activities, tell
them they can earn more money without a union and will earn less with a
union representing them, create the impression among the employees of
company surveillance by telling them management representatives know the
identity of union proponents, offer more favorable recommendations to
employees as a condition for their voting against a union, or in any other
manner interfere with, restrain, or coerce our employees in the exercise of their
rights to self-organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of any labor organization.
J. DUNCAN COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Robert Malcolm and Melvin Johnson if 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.
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, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts 02108,
Telephone 223-3353.
United Fruit Company and National Maritime Union of America,
AFL-CIO, Petitioner. Case 2-RC-14173. June 10, 1966
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hear-
ing Officer Wilbur H. Friedman. The Hearing Officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed. The Employer and the Petitioner filed briefs with the
Board.
159 NLRB No. 4.