Jackson Tile Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 31, 1958

122 N.L.R.B. 764 (N.L.R.B. 1958)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pensation, and withholds income tax payments from their pay.
The lease agreement between the Employer and the lease operators
gives the Employer "full and complete right to the exclusive pos-
session, use and control" of the vehicles involved. In these cir-
cumstances, and upon the entire record, we find that an employer-
employee relationship, rather than an independent contractor
relationship, exists herein, and we shall therefore include the lease
operators in the unit.8
In view of the foregoing, we find that the following employees
of the Employer constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the
Act : All truckdrivers, warehousemen, switchers, and checkers, em-
ployed by the Employer at its Charlotte, North Carolina, terminal,
including lease operators and the dispatcher, but excluding office
clerical employees, salesmen, claimsmen, mechanics and repairmen,
the night cashier, warehouse maintenance man, all other employees,
guards, and supervisors as defined by the Act.
[Text of Direction of Election omitted from publication.]
8 New Orleans Furnitwre Manufacturing Co., 115 NLRB 1494, at p. 1497 ; Consolidated
Forwarding Company, Inc., 112 NLRB 357 , at pp. 363-365 ; Hughes Transportation, Inc.,
109 NLRB 458 , at p. 460-462 . Cf. Local No . 24, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America , etc. (A.C.E. Transportation Co., Inc.),
120 NLRB 1103 ; Chemical Tank Lines , Inc., 115 NLRB 221, at p. 225 ; Cement Transport
Inc., 111 NLRB 175, at p. 178-179.
Jackson Tile Manufacturing Company and United Glass &
Ceramic Workers of North America, AFL-CIO-CLC and Em-
ployees Council of Jackson Tile Manufacturing Company.
Cases Nos. 15-CA-999 and 15-CA-1084. December 31, 1958
DECISION AND ORDER
On May 5, 1958, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Re-
port and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
122 NLRB No. 94.
JACKSON TILE MANUFACTURING COMPANY 765
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications
and exceptions?
1. The Trial Examiner found that certain antiunion activities
undertaken by employee Lee Perry in June 1956 at the instance and
on behalf of the Respondent constituted a violation of Section
8 (a) (1) of the Act. Since these activities occurred more than 6
months prior to the filing and service of the charge in Case No.
15-CA-999, such a finding is precluded by Section 10(b) of the
Act. We, therefore, do not adopt this finding.
2. The Trial Examiner also found that Foreman Hawk refrained
from discharging employee Perry for violating a Company no-
solicitation rule only when Hawk fortuitously learned that Perry's
alleged solicitation occurred away from company property and on
the employee's own time. This action or lack thereof on the part
of Hawk, the Trial Examiner determined constituted coercion
within the meaning of Section 8(a) (1) of the Act. We do not
agree with this conclusion and accordingly shall dismiss the com-
plaint in this respect.
. 3. We also do not agree with the Trial Examiner that the
Respondent violated Section 8(a) (1) of the Act by granting its
employees an across-the-board wage increase on or about Septem-
ber 30, 1957. The record shows that the Respondent determined
in June or July 1957 to grant a plantwide wage increase "in the
fall if business kept up." A similar wage increase had been
granted by the Respondent in the fall of the preceding year. On
August 15, 1957, the Union petitioned the Board for an election.
Subsequently, during its organizing campaign, the Union distributed
a leaflet to the Respondent's employees which, in effect, challenged
the Respondent to grant the wage increase it had previously an-
nounced it was contemplating. Shortly thereafter, on September 30,
1957, the Respondent announced it was granting the increase. On
October 11, 1957, the Respondent placed in its employee's pay
envelopes, which contained their first paychecks at the increased
wage rate, a leaflet which stated, inter alia, "Wage increases result
from business profits, not union magic."
1 The Respondent requested oral argument . The request is hereby denied because the
record, the exceptions , and briefs adequately present the issues and positions of the
parties.
-At one point , the Trial Examiner inadvertently stated that a conversation between
Personnel manager Newman and Ralph Echols occurred about the middle of January
1957, whereas the record discloses that the conversation took place about the middle of
July 1957. As this statement is incorrect, we do not adopt it. However, this minor
inaccuracy does not affect the correctness of the conclusions reached by the Trial Examiner
as adopted in our Decision.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Viewed in the particular circumstances described above, we find
that the evidence does not preponderate in favor of a finding of a
violation of Section 8(a) (1) of the Act. The wage increase was
contemplated at a time antedating the filing of the representation
petition by the Union and was granted in accordance with a wage
policy instituted in a prior year. That the Respondent inserted
into the employees' pay envelopes the leaflets alluded to above does
not militate against such a finding. In our opinion, such action
did not impair the employees' ability to evaluate the Company's
leaflet as a campaign response initiated by the challenge posed in
the Union's leaflet. Accordingly, we do not adopt the Trial Ex-
aminer's findings that the granting of the wage increase was
violative of Section 8(a) (1) of the Act.
4. We find, as did the Trial Examiner, that the Respondent
violated Section 8(a) (1) of the Act by (a) the conduct of Fore-
man Hawk and Personnel Manager Newman in instructing em-
ployee Perry, before Perry's scheduled interview by a Board field
examiner concerning the charges filed in Case No. 15-CA-999, as
to how to answer questions they anticipated the field examiner was
going to ask Perry; (b) Hawk's questioning of Perry, following
the latter's interview by the field examiner, as to the statements he
made to the field examiner; (c) Hawk's instructions to employees
at departmental meetings to say "NO" if anyone asked if Hawk
had spoken about the Union at these meetings, although he did
so; and (d) Hawk's statement to Perry that the Respondent's
officials would "see and hear" witnesses at the hearing. It is clear
to us, and we find, that the foregoing conduct was calculated to
interfere with, and obstruct the Board in its investigation and
had the effect of depriving employees of vindication by the Board
of their statutory rights, in violation of Section 8(a) (1).3
5. We find, in agreement with the Trial Examiner, that the
Respondent violated Section 8(a) (3) and (1) by discharging
Johnnie H. Neal, Thomas McNeil, Dorrence McNeil, and Ralph
Echols because of their actual or suspected activities on behalf of
the Union. In finding discrimination against Echols and Neal,
we consider it unnecessary to determine, as did the Trial Examiner,
whether the no-solicitation rule was valid4 or whether these em-
ployees had violated the rule. We reach this conclusion because
the evidence persuades us that Echols' and Neal's alleged violation
of the rule was a mere pretext to shield the Respondent's true
S Unlike the Trial Examiner , however, we find it unnecessary to consider whether this
conduct also constituted a willful violation of Section 12. We also do not adopt the Trial
Examiner's comments concerning statements contained in the Respondent 's attorney's
brief, unnecessary as these comments are to the disposition of the case.
It In view of our determination herein, we also find it unnecessary to adopt the Trial
Examiner 's findings that Neal and Echols , as well as Scoggins, whom we also find was
unlawfully discharged , were entrapped.
JACKSON TILE MANUFACTURING COMPANY 767
motive to eliminate employees who it suspected were union
adherents.
6. We also find, as did the Trial Examiner, that the Respondent
violated Section 8(a) (1) by discharging John Scoggins, a super-
visor, because he became reluctant to commit further unfair labor
practices on the Respondent's behalf. The Board has held that a
discharge of a supervisor for refusing to commit unfair labor
practices on behalf of his employer constitutes an invasion of the
self-organizational rights of rank-and-file employees s This is so
because it demonstrates graphically to rank-and-file employees the
extreme measures to which the offending employer will resort in
order to thwart them in their desire to join or assist a labor
organization.
THE REMEDY
We shall adopt the remedy recommended by the Trial Examiner,
as modified herein. The Trial Examiner recommended, inter alia,
that the Respondent be directed to reinstate Scoggins and make him
whole for any loss of pay he suffered by reason of the discrimina-
tion against him. While we shall direct the Respondent to remedy
Scoggins' unlawful discharge by providing for his reinstatement
with back pay in the manner set forth by the Trial Examiner, we
predicate the • necessity for such a remedy upon the finding made
above that Scoggins' discharge constituted an invasion of the self-
organizational rights of the nonsupervisory employees, and as such,
violated Section 8(a) (1) of the Act. Thus, the remedy of rein-
statement with back pay is required in order to restore to non-
supervisory employees their full freedom to exercise the rights
guaranteed them in Section 7 of the Act .6
The Trial Examiner also recommended that the Respondent be
directed to reinstate with back pay Dorrence McNeil, Thomas
McNeil, Ralph Echols, and Johnnie H. Neal. We do not adopt
this part of the remedy insofar as it relates to Johnnie H. Neal.
The record indicates that pursuant to the settlement agreement in
Case No. 15-CA-999, the Respondent paid a sum of money to Neal
who declined reemployment with the. Respondent and since then
has not been in the Respondent's employ. In these circumstances,
we shall not require the Respondent to offer Neal further back
pay or reinstatement.
We further find, as did the Trial Examiner, that in order to
dissipate the Respondent's coercive conduct toward its employees,
it is necessary to require the Respondent to read and distribute
copies of the notice attached hereto as Appendix A to its em-
ployees. We do so not only because of the numerous and serious
° Talladega Cotton Factory , Inc., 106 NLRB 295, enfd. 213 F. 2d 208 (C.A. 5).
Talladega Cotton Factory, Inc., supra.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature of the unfair labor practices committed by the Respondent
but also because the record shows, and the Trial Examiner found,
that the Respondent discouraged employees, if it did not order
them, to refrain from reading the notices which it had posted
pursuant to the settlement agreement in Case No. 15-CA-999: In
addition, the record indicates that some of the Respondent's
-employees are illiterate.
Because the Respondent's conduct in the commission of the un-
'fair labor practices found herein, goes to the very heart of the Act,
and because it may reasonably be anticipated from its past conduct
that the Respondent may commit other violations in the future,
we shall order that the Respondent cease and desist from in any
other manner infringing upon the rights of employees as guaranm
teed by the Act.7
ORDER.
Upon the basis of the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that the Re-
spohdent, Jackson Tile Manufacturing Company, Jackson, Missis-
sippi, its officers, agents, successors, and assigns, shall:
1. ' Cease and desist from :
(a) 'Discouraging membership in United Glass & Ceramic Work-
ers of North America, AFL-CIO-CLC, or any other labor organi-
,zation of its employees, by discharging or refusing to reinstate
them or in any other manner discriminating against them in regard
to hire or tenure of employment or any term or condition of
employment.
(b) Dominating or interfering with the formation and adminis-
tration of Employees Council of Jackson Tile Manufacturing Com-
pany or any other labor organization, or contributing financial or
other support to such labor organization.
(c) Recognizing Employees Council of Jackson Tile Manufac-
turing Company, or any successor thereto, as the representative of
any of its employees for the purpose of dealing with the Respondent
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other terms or conditions of employment.
(d) Interrogating employees concerning their union views, mem-
bership, and activities, in a manner constituting interference,* re-
straint, and coercion within the meaning of Section 8(a) (1) of the
Act; requesting or permitting any of its employees to maintain
surveillance over, spy upon, or report to the Respondent on any
union meeting of United Glass & Ceramic Workers of North
America, AFL-CIO-CLC, or upon the union activities of any' of
7 N.L.R.B. v . Entwistle 3!fg. Co ., 120 F. 2d 532, 536 ( C.A. 4).
JACKSON TILE MANUFACTURING COMPANY 769
its employees, or warning its employees against accepting handbills
distributed by the said Union or otherwise participating in the
said Union's activities; preventing or otherwise interfering with
the reading of the notice attached hereto as Appendix A; inter-
fering with and obstructing investigations conducted by the National
Labor Relations Board pursuant to charges filed with the Board;
and threatening employees with discharge or other economic loss
if they joined or assisted the said Union or any other labor
organization.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Glass & Ceramic
Workers of North America, AFL-CIO-CLC, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of mutual aid or protection, and to refrain from any and
all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw and withold all recognition from, and completely
disestablish, Employees Council of Jackson Tile Manufacturing
Company, or any successor thereto, as the representative of any of
its employees for the purpose of dealing with the Respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms and conditions of employment.
(b) Offer Thomas McNeil, Dorrence McNeil, and Ralph Echols
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make them whole for
any loss of pay they may have suffered by reason of the discrimi-
nation against them, in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(c) Offer John Scoggins immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges previously enjoyed,
and make him whole for any loss of pay he may have suffered by
reason of his discharge, in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(d) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amounts of back
505395-59-vol. 1.22-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay due and the rights to employment under the terms of this
Order.
(e) Post at its plant at Jackson, Mississippi, copies of the notice
attached hereto as Appendix A.8 Copies of said notice, to be fur-
nished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by Respondent, be posted immediately
upon receipt thereof and be maintained by it for sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or covered
by any other material.
(f) Convene by shifts all its employees, and read to all such
employees the contents of the aforementioned notice.
(g) Copies of said notice, to be furnished by the Regional Direc-
tor for the Fifteenth Region, shall, after being duly signed by the
Respondent, be distributed by the Respondent in the pay envelopes
of its employees on a pay day falling within the sixty (60) day
period referred to in paragraph (e) above.
(h) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, as to
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges unfair labor practices not found herein.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the worlds "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions 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 in United Glass &
Ceramic Workers of North America, AFL-CIO-CLC, or any
other labor organization of our employees by discharging
and/or refusing to reinstate them or in any other manner dis-
criminate against them, in regard to hire or tenure of em-
ployment or any term or condition of employment.
WE WILL NOT dominate or interfere with the formation and
administration of Employees Council of Jackson Tile Manu-
facturing Company or any other labor organization, or con-
tribute financial or other support to such labor organization.
IVE WILL NOT recognize Employees Council of Jackson Tile
Manufacturing Company, or any successor thereto, as the rep-
JACKSON TILE MANUFACTURING COMPANY 771
resentative of any of our employees for the purpose of dealing
with us concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms or conditions of
employment.
WE WILL NOT interrogate employees concerning their union
views, membership, and activities in a manner constituting
interference, restraint, and coercion within the meaning of
Section 8 (a) (1) of the Act.
WE WILL NOT engage in surveillance of union meetings.
WE WILL NOT interfere with the right of employees to receive
union handbills or otherwise to engage in union activities.
WE WILL NOT request or permit any of our employees to
maintain surveillance over, spy upon, or report to us on any
union meeting of United Glass & Ceramic Workers of North
America, AFL-CIO-CLC, or upon activities of any of our
employees.
WE WILL NOT interfere with the right of employees to read
a notice posted pursuant to a Decision and Order of the
National Labor Relations Board or pursuant to a Decree of
the United States Court of Appeals, enforcing an Order of
the National Labor Relations Board.
WE WILL NOT interfere with and obstruct investigations con-
ducted by the National Labor Relations Board pursuant to
charges filed with the Board.
WE WILL NOT threaten employees with discharge or other
economic loss if they join or assist the Union or any other
labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form labor organizations, to join or assist United
Glass & Ceramic Workers of North America, AFL-CIO-CLC,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of mutual aid or protec-
tion, and to refrain from any or all such activities, except to
the extent such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act.
WE WILL offer John Scoggins, Thomas McNeil, Dorrence
McNeil, and Ralph Echols immediate and full reinstatement
to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed.
WE WILL make whole Thomas McNeil, Dorrence McNeil, and
Ralph Echols for any loss of pay suffered as a result of the
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination against them. We will also make whole John
Scoggins for any loss of pay suffered as a result of his dis-
charge. We have made whole Johnnie H. Neal for any loss
of pay suffered as a result of the discrimination against him.
WE HAVE disestablished Employees Council of Jackson Tile
Manufacturing Company as the representative of any of our
employees for the purpose of dealing with us concerning griev-
ances, labor disputes, rates of pay, hours of employment, and
other conditions of employment, and we will not recognize it
or any successor thereto for any of the above purposes.
All our employees are free to become or remain members of the
United Glass & Ceramic Workers of North America, AFL-CIO-
CLC, or any other labor organization or to refrain from such
membership except to the extent that this right may be affected by
an agreement authorized by Section 8(a) (3) of the Act.
JACKSON TILE MANUFACTURING CODMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative )' ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge in Case No. 15-CA-999 filed on January 29, 1957, and subse-
quently amended and upon a charge in Case No. 15-CA-1084 filed on Septem-
ber 4, 1957, by United Glass & Ceramic Workers of North America, AFL -CIO-
CLC, hereinafter referred to as the Union , the General Counsel of the National
Labor Relations Board, herein called respectively the General Counsel 1 and the
Board, by the Regional Director for the Fifteenth Region (New Orleans , Louisiana),
issued its complaint against Jackson Tile Manufacturing Company, herein referred
to as the Respondent , alleging that the Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the meaning of Section
8(a)(1)(2) and (3 ), and Section 2(6) and (7) of the Labor Management Act, 1947,
61 Stat. 136, herein called the Act. Copies of the charges and the complaint to-
gether with the order consolidating cases and notice of hearing thereon were duly
served upon the Respondent and the Union.
The Respondent duly filed its answer admitting certain allegations of the com-
plaint but denying the commission of any unfair labor practices.
Pursuant to notice a hearing was held at Jackson, Mississippi , from January 21
through January 30, 1958, inclusive, before the duly designated Trial Examiner.
All parties appeared at the hearing , were represented by counsel , and afforded
full opportunity to be heard , to produce , examine and cross-examine witnesses, to
introduce evidence material and pertinent to the issues , and were advised of their
right to argue orally upon the record , and to file briefs and proposed findings and
conclusions . On March 24 , 1958, briefs were received from the General Counsel
and the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
I This term specifically includes the attorneys appearing for the General Counsel at
the hearing.
JACKSON TILE MANUFACTURING COMPANY
FINDINGS OF FACT
773
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the Respondent admitted , and the Trial Examiner finds
that Jackson Tile Manufacturing Company at all times material herein was a
Mississippi corporation and a wholly owned subsidiary of Mosaic Tile Company,
Zanesville , Ohio, and is engaged in the manufacture of ceramic tile. During the
year ending December 31 , 1956, which period is representative of all times mate-
rial herein , the Respondent shipped ceramic tile to points inside the State of Mis-
sissippi valued in excess of $ 100,000 to companies who sold products outside the
State of Mississippi valued in excess of $50,000. During the same year the Re-
spondent shipped goods valued in excess of $200,000 to points outside the State
of Mississippi.
The Respondent is, and was at all times material herein , engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Glass & Ceramic Workers of North America , AFL-CIO-CLC, is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory remarks
On May 28, 1957 , the Respondent , the Union , and the Regional Director en-
tered into a settlement agreement covering the charges in Case No. 15-CA-999
whereby the Respondent agreed to pay to Johnnie H . Neal the sum of $550; to
disestablish the Employees Council of the Jackson Tile Manufacturing Company;
and to post notices notifying the employees that the Respondent would not in any
manner interfere with, restrain , or coerce its employees . The Respondent paid
the sum of $550 to Johnnie H . Neal, disestablished the Employees Council of the
Jackson Tile Manufacturing Company, and posted said notice.
Thereafter on September 4, 1957, the Union filed charges in Case No. 15-CA-
1084, charging that the Respondent had discriminatorily discharged two other em-
ployees and , in addition , had interfered with, restrained , and coerced its employees.
On November 27, 1957, the Regional Director notified the Respondent that he
was setting aside the settlement agreement of May 28, 1957 , and reinstating the
charges in Case No. 15-CA-999.
The Board stated the law in Courier Post Publishing Company, 102 NLRB 26,
28, as follows:
It is well established that where , after the execution of a settlement agree-
ment, unfair labor practices occur which violate that agreement , the Board
will go behind the agreement and litigate the presettlement as well as the post
settlement violations , for the reason that it is a "salutary policy to protect
parties to a settlement agreement against violations of the agreement ." Where
alleged post settlement violations are brought to its attention , the Board is
not precluded by Section 10(b) of the Act from processing the unfair labor
practices alleged in the presettlement charge, notwithstanding such violations
occurred more than 6 months before the filing of the post settlement charge.
In such cases , the effect of the settlement agreement in bringing to a halt the
Board's investigatory processes is dissipated , and any apparent unfair labor
practices revealed by the investigation of the original charge, if they occurred
within 6 months of the original charge, become cognizable by the Board and
may be included in the complaint.
Accordingly , the Trial Examiner will divide the findings of fact into presettle-
ment facts and post settlement facts and will consider only the latter in deter-
mining whether they warrant the setting aside of the settlement agreement referred
to above.
B. The facts
1. Presettlement
a. The informer system and other coercion
The complaint in the present case charges that the Respondent through its per-
sonnel manager, James G. Newman, "instituted and maintained an informer system
among the employees ..." from the opening of the plant to the present day.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undenied that about the time Respondent began operations in March 1956
Newman warned the assembled foremen in a foreman's meeting that a union
would try to organize the employees of the plant within the "near future" and
instructed them that they "should keep their eyes and ears open" for any conver-
sation pertaining to union activities, should "watch out" for soliciting among the
employees and that, if they knew or heard of any solicitation among the employees
or of any employees engaging in union activities, the foremen would have to get
rid of those employees.2
As individuals were employed by the Respondent, they were given an Employee's
Handbook containing, among other things, the company rules which they were
instructed to read. Rule 10, the violation of which according to the handbook
would "subject the employee to disciplinary action, including discharge," reads as
follows: "Solicitation on company time or property without permission." Respond-
ent supplied its foremen with separate instructions which listed the penalty for
violation of rule 10 as discharge for the first offense. These instructions to the
foremen were never read to the employees.3
The first pressman hired by Foreman Hawk about January 1956, was Lee Kelly
Perry. About 3 weeks after Perry's employment began and while Respondent was
still staffing the plant, Foreman Hawk drove out to Perry's home where Hawk
asked Perry if he had seen a union organizer around, explaining that he, Hawk,
thought that he had seen an organizer he recognized from Zanesville (where the
Mosaic employees had been organized by this same union) and if anyone had
contacted Perry about the Union. After Perry answered both questions in the
negative, Hawk continued by suggesting to Perry that "it would be nice" if Perry
would talk to the new employees and tell them that the Respondent was not going
to have anyone interested in the Union working for it. Hawk then suggested to
Perry that he "feel the employees out" and report back to Hawk any whom he
found to be interested in the Union so that Hawk could fire them. This was the
first of innumerable similar requests made by Hawk of Perry which continued
until a "misunderstanding" occurred between Perry and Hawk in September 1957.
About June 1956 the Union issued its first leaflet to the employees of the Re-
spondent's plant. Again Hawk drove out to Perry's home and inquired if Perry
had received any of the union literature with an attached authorization card.
Perry acknowledged that he had one in his automobile. Hawk thereupon walked
to the automobile and took the literature from the car. Then Hawk expressed
worry to Perry as to what the other employees might do with the literature and
card. Perry inquired as to whether there was anything he could do. Hawk sug-
gested that he would like to get his hands on as many of the leaflets and cards
as he could, that he had already contacted some of the employees and would see
more of them but that he would like it if Perry would see some of the employees
and "see if you can gather up some of these cards." That same evening Perry
succeeded in securing one leaflet from an employee whom he saw and which Perry
took to Hawk.
That day Hawk consulted Newman about using Perry to collect this literature.
In turn Newman consulted Respondent's attorney, Hurst.
The following day, Saturday, Hawk returned to the Perry residence and asked
Perry to go see certain employees located in the surrounding towns of Canton,
Florence, Raymond, and Utica, all located in a 25-mile radius of Jackson, and
collect the union literature which they might have received. Hawk also told Perry
to keep the mileage and time he spent on this expedition. Again Perry was able
to collect one or two pieces of literature from the employees he saw and return it
to Hawk.
On Monday Hawk took Perry to see Newman who complimented Perry for what
he had done and who also paid Perry the sum of about $16 for his Saturday
work. Newman expressed appreciation for the "fine qualities of leadership and
loyalty to the Company" which Perry had indicated and further suggested that,
as all promotions would be made from inside the Company, Perry would be con-
sidered for any such if he continued to talk and to keep his eyes and ears open.
Newman then instructed Perry that, if he found anyone interested in the Union
among the Company's employees, he should report that matter either to Hawk or
Newman as they were "not going to have anybody back there who was for the
Union."
2 It should be noted that these verbal instructions by Newman were, unlike rule 10 on
solicitation found in the Employee's Handbook, without limitation as to time or place.
In fact at the hearing the Respondent originally denied the existence of any such
instructions to the foremen but, eventually , the existence of such instructions was
admitted.
JACKSON TILE MANUFACTURING COMPANY 775
In June 1956 Foreman Martin took his friend, Henry Payne, to Newman in an
effort to secure employment for Payne. After telling Newman that Payne was
a friend of his for whom he wished to get employment, Foreman Martin signifi-
cantly volunteered that Payne would report any union talk or activity among the
employees, a statement which Payne affirmed when Newman asked him the direct
question. Newman thereupon hired Payne and called Foreman Scoggins to his
office where he instructed him to place Payne somewhere that union activity might
get started as Payne would keep them informed about it. Scoggins started Payne
at work as a tile stacker where he was to work with the McNeil boys and an
employee named Carr. Scoggins instructed Payne to watch Carr in particular.4
When employee Tipsie Edwards was appointed to a minor supervisory position
under Foreman Scoggins, Newman told her that she was to prevent any solicita-
tion for the Union and to keep down any union talk. In August 1956, shortly
after her promotion, Scoggins ordered her to search the desk and personal effects
of employee Peggy Sims looking for union material as soon as Newman had Sims
called into his office. Edwards did as ordered but had to report that she found
no union material .15
Zackie Wolverton was hired as a tile stacker in July 1956 by Newman who in-
quired of him during the employment interview what he thought of unions.
Wolverton answered that he had only belonged to a "credit union." Newman
stated at that time that the Respondent wanted to keep the Union out if they could.
About 6 months thereafter Newman called Wolverton into his office to inform
him that Wolverton's request to transfer to the kiln department was going to be
granted. Newman stated that the kiln was a "good place" for union talk and that
he wanted Wolverton to keep his eyes and ears open and, if Wolverton heard any-
thing, Newman would protect him and keep it strictly confidential.
One night about 10 p.m. during the summer of 1956, Foreman Hawk drove to
the home of Lulu Mae Harper in company with Reverend Cleveland Page, a
Negro minister in the Respondent's employ.6 On Page's instructions, Harper went
out to the automobile where Foreman Hawk was sitting. Hawk asked if Harper
had gotten any of the union literature which had been distributed at the gate that
afternoon as the employees left work. When Harper told Hawk that the union
people had only succeeded in getting two or three leaflets into the automobile,
Hawk inquired as to what the girls in the automobile had done with them. Harper
informed him that the girls had thrown the leaflets out of the car as he, Hawk,
had instructed them to have nothing to do with union literature. Hawk then
asked if Harper knew of anyone having anything to do with the Union. Hawk
ended this late hour interrogation by saying "If you find out anything about any-
body, you talk to them and if you find anybody back there having anything to
do with [the Union], you report it to me and I will get rid of them."
About February 1957, early one morning in the plant before working hours,
Hawk asked Harper if she had received any mail from the union people and, if
she did receive any, to bring it in to him as the other employees had done. He
then turned and made the same request of another employee standing by.
A number of other employees brought the union literature which they had
received in to Foreman Chase. Although Chase denied "ordering" any employee
to bring such literature to him, he acknowledged that he had at least "intimated"
to the employees that he would like to see such literature.
In March 1957 Newman employed John Henry Smith. About 4 days later when
he transferred Smith to another department, Newman asked Smith to please let
him know if Smith ever heard anything about any union activity among the
employees.
Although employees Ila Buford and Ruby Bounds denied making reports to
Newman, except in one instance, the testimony of Lowrance and Newman prove
that at least by January or February 1957, they were receiving reports from these
two employees as to conditions in the glaze sorting department under Foreman
Scoggins. When Foreman Scoggins objected to the use of such informers to
Newman, Newman referred to them as his "contacts."
b. Espionage
As found above, Newman hired Payne in June 1956, after Payne had affirmed
the statement of his sponsor, Foreman Martin, that Payne would report to New-
• Payne's espionage work for Newman will be found In the following section of this
Report.
5 Newman denied having called Sims to his office but admitted that Sims had to spend
2 or 3 hours per day there working on a calculating machine.
e Hawk admitted having driven Page to the Harper home.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man any union activities he saw or heard. A check of Payne's references dis-
closed that many of his relatives working at the Knox Glass Company were inter-
ested in the union and that Payne had been a member of a union when he
worked in the oil fields.
Acting upon his instructions to place Payne in a position where union activities
might occur so that Payne could report on them, Foreman Scoggins had Payne
stack tile along with Thomas and Dorrence McNeil and Robert Carr with specific
instructions to watch Carr.7
About the first of August 1956, Thomas McNeil asked Payne what he thought
about unions and then invited him to attend a union meeting that evening. Payne
promptly reported the receipt of this invitation to Newman and Scoggins. New-
man was very pleased and told Payne to go to the meeting, gave Payne his own
telephone number, and instructed him to report to him as soon as he had returned
from the meeting.
That evening Payne was driven by Thomas and Dorrence McNeil to the meet-
ing which was held at a motel a few miles outside of Jackson where Organizer
Kanatzer was living. The meeting was attended by only a half dozen employees
including the McNeils.
As soon as Payne returned from the meeting, he telephoned to Newman who
immediately drove his automobile over to where Payne was and picked him up.
Then they drove outside of town a little ways where Newman plied Payne with
questions regarding the persons who had attended the meeting, those who had
signed union cards and what plans the Union had made.
About this same time Newman informed Foreman Scoggins that the McNeils
were working for the Union and were contacting employees on and off the job
and that, as the Respondent would not stand for that, "we had to make provision
to get rid of the boys." On August 15 and 16, Scoggins discharged the McNeill
under circumstances which will be found hereinafter.
Thereafter Payne continued to attend union meetings whenever they were held
over an 8-month period. In all he attended approximately six meetings. In the
evenings after each meeting Payne would telephone to Newman using a prearranged
"cloak and dagger" name code suggested by Newman. Each time Newman
promptly drove over, picked up Payne in his automobile and interrogated him at
length as to the employees present, the employees who had signed union cards,
when the Union planned to distribute its next leaflets and any and all matters which
might have taken place at the meeting. Although Newman testified at the hearing,
that after a few such reports, he became suspicious of Payne, it is significant that
on two or three occasions Newman handed Payne money purportedly for gasoline
so that he could get to and from the meetings.°
During this period Foreman Hawk, at least, let it be known among the employees
in his department at their weekly departmental meetings that he would know the
next day if and when an employee signed a union card along with the further assur-
ance that he was not going to have anyone working in his department who had
signed such a union card or was fooling around with the Union.
Both Payne and Lee Perry were interviewed by a field examiner for the Board
regarding the original charges which had been made by the Union against the
Respondent. Prior to the field examiner's visit to the Respondent's plant on this
investigation, Newman along with Foremen Scoggins and Hawk briefed each of
these employees on what they should and should not tell said field examiner.9
Scoggins, Payne, and Perry acknowledged that on this occasion they either gave
the field examiner false or, at least, incomplete information as ordered by the
Respondent.
This espionage episode came to an end about the beginning of 1957. One
evening when the Respondent knew that union leaflets and pledge cards had been
7 Carr's employment ceased thereafter under circumstances not disclosed in this record.
e The only real conflict between the testimony of Newman and Payne on this episode
arose over whether or not at Newman's suggestion an attempt was made to outfit Payne
with a radio sending device concealed on his body so that Newman could sit across the
lake from the motel and hear what was going on in the meeting by means of this device.
Payne testified that the plan was anbandoned only after two unsuccessful experiments,
while Newman denied ever having made any such suggestion. It is interesting that, as a
witness, Newman volunteered the information that Payne had "a very short memory"
because "many things that happened only an -hour or so previously he couldn't remem-
ber." However, because of its insignificance, the undersigned will not resolve this
conflict.
9 Newman denied that he briefed these employees "as such" but admitted talking to
them prior to the interview with the field examiner and telling them to tell the truth.
JACKSON TILE MANUFACTURING COMPANY 777
mailed to the employees, Newman and Hawk drove to Payne's home where New-
man asked Payne if he had received any mail that day from the Union. Payne
acknowledged its receipt and, at Newman's suggestion, went into his house to get
the same for him. However, having already detached the pledge card from the
leaflet, Payne decided to overlook the remaining leaflet deliberately and to tell
Newman that the material apparently had already been thrown away which he did.
However, attempting to be helpful, Payne's mother suddenly came out of the house
while Payne was still talking to Newman with the leaflet minus the pledge card.
When the material was handed to Newman and Hawk, they promptly asked where
the pledge card was. Then Newman inquired of Hawk as to whether he thought
that Payne should continue spying upon the Union. After Hawk stated that he
saw no danger in his continuing, Newman instructed Payne to continue to go to
union meetings.
Shortly thereafter, at Payne's request, Organizer Kanatzer came to Payne's home
one afternoon where Payne explained exactly what he had been doing for New-
man. Kanatzer instructed Payne just to continue doing as he had in the past in
order to see what Newman could do. Almost as Kanatzer drove away from the
Payne home, Newman and Hawk again drove up and asked Payne if he had had
a visitor that day. Payne informed them that Kanatzer had been at his home in
order to tell him that there would be another union meeting the following evening.
Newman inquired if Payne intended to go. After Payne had answered in the
affirmative, Newman asked "Don't you think you ought to get on one side of the
fence or the other and stay there?" and then suggested "You could get caught in
the middle of this thing and make it uncomfortable for you . . . you might get
hurt." Newman ended the conversation by saying that Payne could attend the
meeting if he desired but that he should not go "for the Company." Payne
actually did attend the meeting but, for the first time, did not report back to
Newman.
Soon thereafter Payne was transferred from the toolroom to work on a belt,
a transfer which Payne considered to be a demotion. After agreeing to the transfer,
Payne informed Newman that he had given a statement of his espionage activities
for Respondent to Kanatzer. Immediately Newman wanted to know exactly what
Payne had said in this statement and, especially, as to whether Payne had men-
tioned the fact that Newman had paid him money. That same evening Newman
invited and took Payne to dinner at an expensive restaurant in Jackson during
which Newman mentioned the possibility of a job as a truckdriver for Payne.
Following dinner, Newman drove Payne to the home of Respondent's attorney
who also interrogated Payne regarding his statement to the Union.
Believing that he was not "getting a fair shake," Payne quit the Respondent's
employ about 6 weeks later, the middle of April 1957.
c. The Employees Council
As found heretofore, at one of the very first foremen's meetings held at the
Jackson plant after its opening in March 1956, the Respondent's officials warned the
supervisory staff to expect a union to try to organize the plant "within the near
future" and for them to "keep their eyes and ears open" for union activity as the
Company did not want a union in the plant.
Despite the numerous precautionary measures taken by the Respondent from the
very opening of the plant, the first actual union activity of which the Respondent
admitted knowledge at the hearing was the Union's first distribution of leaflets
about June 1956.
In July or August 1956, acting upon orders received from the Respondent's
board of directors, Newman informed the foremen that an Employees Council
was to be formed for the employees in the plant and that they, the foremen, were
to so inform the employees and also were to conduct elections in their respective
departments in order to select the departmental representative to the Council. The
foremen passed on this information to their employees, and called and conducted
such elections on company property during working hours. In one department, at
least, Foreman Hawk arranged that one of his employees should nominate
employee Lee Perry who was thereupon elected the departmental representative.
Actually two Councils were set up by the Respondent, one for the white em-
ployees and the other for the Negro employees. According to the minutes of each
Council which were kept and distributed to the representatives by Mrs. Louise
Hunter, Respondent's assistant personnel director, each Council held separate but
similar meetings every month or so on company property and time. Although
Newman would not admit it, the minutes show that Newman presided over both
7778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Councils and that his assistant in the personnel department acted as secretary for
both.
Respondent not only formed the Council but it also financed and administered
the same. The meetings were held on company time and property. The Council
representatives were paid for the time so spent. The Council's only money was
that which it received from the Respondent from the vending machine profits. At
Newman's suggestion the Council elected one individual from their number to
handle these receipts and to report to the Council. Otherwise there were no
membership requirements, no dues, no officers, no constitution or bylaws, and no
membership meetings. Obviously the Council was the creature of the Respondent.
At these Council meetings such matters as incentive rates, holidays, hours, gripes,
grievances, and conditions of work were discussed, matters recognized as being
proper subjects of collective bargaining. The Council made no effort to secure
a contract with the Respondent, or, indeed to engage in collective bargaining in
good faith. However as the Councils were formed by the Respondent in order to
handle the Respondent's gripes and grievances concerning wages, hours of employ-
ment, and conditions of work, the Council was a labor organization within the
meaning of Section 2(5) of the Act.
At the time the Union was passing out literature to the employees as they en-
tered or left the plant, Foreman Hawk instructed Perry that it was his duty as
councilman to inform the employees to roll up the windows of their automobiles
in order to prevent the distributors from handing union leaflets to the employees
and that it was their duty to refuse to accept such literature in order to show their
loyalty for the Company-especially, as company officials would be watching. On
other occasions Hawk ordered Perry to drive certain employees through the dis-
tribution point to be sure that they did not receive any of the leaflets.
In accordance with the settlement of May 28, 1957, the Respondent ordered the
Council dissolved and, in fact, oversaw the disestablishment.
There is no evidence that subsequent to the settlement there has been any revival
of the Council.
d. The discharges of the McNeils
In accordance with the promise he had made Newman in order to secure his
employment with the Respondent, Henry Payne reported to Newman early in
August 1956, that his fellow stacker, Thomas McNeil, had inquired about his inter-
est in the Union and had invited him to attend a union meeting that same evening.
Upon his return from this meeting, also as agreed upon, Payne telephoned New-
man who immediately drove to pick up Payne and received his report on the union
meeting which included the names of the McNeils as among those present.'°
Sometime early in August 1956, Newman called Scoggins into the office where
he informed Scoggins that the McNeils were "working for the Union," " were con-
tacting employees on and off the job" and that as the Respondent could not toler-
ate this activity, "we had to make some provisions for getting rid of them." New-
man even suggested that Scoggins break up some of the tile stacked by the McNeils
and fire them for breaking tile. This Scoggins refused to do. The following day
Newman instructed Scoggins to start putting in written reprimands , three of which
under Respondent's rule were sufficient to discharge, against the McNeils boys.
When Scoggins asked if Newman had any proof that the McNeils were soliciting,
Newman answered "no, I don't have any proof but my foremen have told me they
are soliciting."
Finally it was suggested to Scoggins that a test check be made of the scratching
and chipping of tile by each stacker. Scoggins instructed each of his five stackers,
including Thomas and Dorrence McNeil, to stack a skid of tile individually so
that it could be checked by the sorters. The general practice at the plant was
to have each skid stacked by two stackers.
After each stacker had completed stacking a skid of tile individually, Scoggins
had the skids stacked by each of the McNeils checked by the sorters with accurate
figures being kept. When the figures on the McNeils' skids had been reported,
Scoggins made up figures for the skids of the other three stackers and turned those
figures written on a piece of scratch paper over to Stuenkel.
On August 15, 1956, Scoggins discharged Thomas McNeil allegedly for exces-
sive chipping and scratching of tile based upon this so-called report. On the
following day he discharged Dorrence McNeil for the same reason.
That day stacker Zackie Wolverton came to Scoggins and Assistant Foreman
James Gill, informed them that this check had made him so nervous that he had
70 Contrary to all other evidence, Newman testified that the McNeils were no longer
employed.
JACKSON TILE MANUFACTURING COMPANY 779
been unable to sleep the night before, and asked that he be transferred from the
department. Scoggins told Wolverton not to worry about the check that he would
"take care" of it. When Wolverton asked if the check had anything to do with
union activities, Scoggins assented.
Some weeks later Newman called Scoggins to his office, told him that a Board
"officer" would be at the plant about noon that day investigating the discharges
of the McNeils and instructed him to reword the reprimands which he had pre-
viously filed against them in a certain manner so that the discharges "would stick."
Scoggins rewrote them as instructed. Furthermore when the Board field examiner
inquired about the McNeils' discharge from Scoggins, he testified in accordance
with the reprimands he had just rewritten which he admitted at the hearing were
false. Newman also briefed Perry and Payne on what they should and should
not tell the field examiner at this investigation.
That same day Lowrance told Graves, foreman of the laboratory control depart-
ment in charge of testing throughout the plant, to return to the laboratory and
make out a report on the McNeil boys with the assistance of Assistant Plant
Superintendent Stuenkel. By the time Graves got to the laboratory, Stuenkel was
already writing out the report in longhand, copying the alleged chipping and
scratching figures for the five stackers from a piece of scratch paper. When com-
pleted, this report indicated the percentage of scratches and chips in the skids
prepared by the McNeils amounted to 1.58 and 1.35 percent, respectively, whereas
those charged against the other three stackers amounted to .39 percent, .53 percent
and .39 percent respectively." Stuenkel ended the report by recommending that
"disciplinary action be taken immediately to prevent excessive loss." Stuenkel
handed this handwritten report to his secretary, Mrs. Grace Stewart, for typing
with instructions to predate the report to August 15, 1956.12
When Scoggins voiced some misgivings about using the so-called test check on
scratching and chipping, Stuenkel justified their action by remarking that they had
to make it appear as though the McNeils had been discharged for chipping and
scratching tile.13
Lowrance was in and out of the laboratory urging speed with the report on the
grounds that the field examiner to whom the report was to be given was already
in his office. This report was handed to the field examiner prior to the dismissal
of the charges involving the McNeils in the settlement agreement of May 1957.
e. The discharge of Johnnie H. Neal
On October 9, 1956, Foreman Don Stockstill approached employee Johnnie H.
Neal at work and said "Johnnie, . . . get your lunch and whatever personnel
belongings you have and come with me." In answer to Neal's inquiry "what's
up?", Stockstill answered "well, I told you once before to keep your nose clean
and leave this Union alone and you could go places with the company . . . I have
a report that you have been over there talking to [Foreman] Hawk's Negroes try-
ing to get them to join the Union." After Neal denied the truth of that report,
Stockstill continued "the man that told me this, I don't believe that he would tell
a man something like that just to get him fired." However, Stockstill refused to
name his informant.
Stockstill took Neal to the personnel office where Mrs. Hunter, assistant person-
nel director, inquired as to what was up. Stockstill said that they would have to
discharge Neal because "he's been back there talking to Hawk's Negroes." Mrs.
Hunter answered "oh! you mean soliciting!" Neal again denied the accusation but
Mrs. Hunter had his checks made out and discharged Neal immediately.
1 Graves testified without contradiction that the daily tests conducted by his depart-
ment on chipping and scratching showed these latter figures to be ridiculously low.
12 Stuenkel is the only witness who testified that this report on chipping and scratching
was in typewritten form on August 15, 1956. On this point his testimony was contra-
dicted by Foremen Graves and Scoggins and by Mrs. Grace Stewart who typed the report.
Mrs. Stewart was the second cousin of the McNeil boys who were living at her home
at the time of their discharge. She was also the secretary in the laboratory control
department. At the time of the hearing she had been sick and absent from the plant
since November 12, 1957, but was expecting to resume her employment with the Re-
spondent as soon as her health permitted. Therefore, both the Respondent and the
General Counsel could have claimed that Mrs. Stewart was biased. However, Mrs.
Stewart was a very impressive witness as she testified from her sick bed and her testi-
mony convinced the Trial Examiner that the report was in fact predated.
32 This testimony was not denied.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later that day according to Mrs. Hunter, or several days thereafter according
to Hosea Anderson , Mrs. Hunter interviewed Anderson as to what had occurred
between himself and Neal. From notes of that conversation Hunter later that day
prepared an affidavit which Anderson subsequently signed. This affidavit is dated
October 9 , 1956. In it Anderson related two conversations he had on October 8
and October 9 with Neal relating to the possibility of Anderson signing a union
card which Neal allegedly stated he had in his automobile.
Anderson also testified at the hearing that on October 8 Neal asked if Anderson
cared to sign a union card and said that , if he did, he , Neal, would bring him
one the next morning. On October 9 , according to Anderson , Neal again inquired
if Anderson wanted to sign a card . When Anderson hesitated , Neal said "if you
don't you are going to lose your job . because they's going to push you out
and you lose your job . . . the best thing for you to do is to sign a card, the
union card ." When Hosea allegedly said "yes," Neal is supposed to have stated
that he had some union cards in his parked automobile. -
According to his own testimony , Anderson very quickly thereafter reported to
Stockstill "Mr. Johnnie [Neal] told me that if I didn ' t sign a union card, that I
was going to lose my job ." Stockstill then answered "don't believe a word of that
. . . go on back to work . . . you ain't going to lose your job if you don't sign
a card." 14
Anderson apparently took this last remark of Stockstill at face value for there
is no showing that he ever signed a union card . He is still employed by the
Respondent.
Apparently on the basis of Anderson 's verbal report , Stockstill took Neal to the
personnel office where he was discharged.
Anderson is another example of an employee who apparently considered it the
better part of valor to report promptly to his foreman when another employee
mentioned a union card to him.15
In the settlement of May 1957 , the Respondent agreed to , and did, pay to
Johnnie H . Neal the sum of $550.
14 After giving the above testimony without hesitation as a witness for the Respondent,
Anderson 's memory failed as soon as cross-examination began. When the General Counsel
attempted to refresh Anderson 's memory from an affidavit Anderson had given him shortly
before the hearing , Anderson testified :
A. You kind of got rough on me there, and, in other words , you scared me, and I
made that statement so I could get released from you as quick as I could . In other
words, I was scared , and You told me to tell Dir. Jimmie [ Newman] that you made
me do so [give and sign the affidavit].
An immediate examination by the Trial Examiner failed to disclose any impropriety in
the actions of the General Counsel nor was Anderson able to give any explanation for his
alleged fear of the General Counsel.
On cross -examination by the General -Counsel Anderson repudiated his affidavit although
acknowledging his own signature and initialed changes throughout the document. While
Anderson -admitted that he had told the General Counsel some of the material contained in
the affidavit , Anderson contended that it was untrue in fact.
It developed that the affidavit in question had been taken at Anderson 's home in Canton,
Mississippi , on a Thursday evening shortly before the hearing began. On Friday morning
Anderson reported the interview to Newman . Friday night Anderson returned home to find
his wife and family had returned to his father -in-law's home. That same evening Ander-
son had a visit from a law enforcement officer whom he referred to as the "High Sheriff of
Canton" who instructed Anderson to report to him if the General Counsel ever returned.
On Saturday Anderson sought the help of Lulu Mae Harper and Kanatzer trying to locate
the General Counsel . After locating the General Counsel with the Union ' s assistance,
Anderson begged the General Counsel to release him from the subpena which the General
Counsel had served upon him Thursday night. Thereupon, although the affidavit contained
considerable evidence bearing on the informer system , the General Counsel released Ander-
son from the subpena . That evening Anderson 's wife and family returned home.
There can be no doubt but that Anderson was a very frightened witness except when
testifying for the Respondent . The only question is what caused that fear.
Under all the circumstances , the Trial Examiner is able to give little, if any, credence to
Anderson 's testimony.
'b In his repudiated affidavit Anderson related how , after having been garnisheed as a
cosigner of a note, he was able to save his employment with Respondent by promising
Newman to report any union activities he might hear.
JACKSON TILE MANUFACTURING COMPANY 781
2. Post settlement
a. informer system and other coercion
Then came the settlement agreement of May 28, 1957, mentioned heretofore.
As required by the settlement agreement, the Respondent posted the aforemen-
tioned settlement agreement on its bulletin board. As employees Lee Perry and
Harvey Page were standing in front of the board one day soon after its posting,
Foreman Hawk walked up and told employees not to pay any attention to the
notice as it was "just a formality" which the Respondent had to put up there.
On another occasion when he noticed Lulu Mae Harper starting to read the posted
settlement notice, Hawk instructed her not to read it "because it wasn't important."
Even after the posting of the settlement notice, Hawk continued his practice of
asking Perry every week or so if he had talked to every one in the department
about the Union and of sending him out to talk to the employees and to "feel
them out" as to how they felt about the Union and whether they had signed a
pledge card and then to report back to him, Hawk. On occasions Hawk would
take over Perry's machine so that Perry could follow out these instructions. During
this whole period from the posting of the notice until September 1957, Newman
likewise would frequently stop at Perry's place of work and ask if he had been
talking to the employees and if he knew any employees who were interested in the
Union. Newman frequently instructed Perry "to keep his eyes and ears open" and
to let Hawk or himself know if Perry located any employee who was interested
in the Union so that they could fire the employee as they were not going to have
anybody working there who was interested in the Union.
Hawk also would send Perry to instruct the other employees to roll up their
automobile windows and not to take any union literature on days when the Union
was passing out leaflets.
Hawk also continued his practice of referring to the Union during his weekly
departmental meetings on Friday afternoons. At these times he reiterated that the
Respondent was not going to have anyone who was interested in the Union or had
signed a union pledge card working in the department, that if any employee got
on the wrong side of the fence there was only one way to go and that was out
the door and that he would know the next day after any employee had signed
a pledge card and would have that information in his little black book. -After the
discharge of Foreman Scoggins, Hawk cited that as an example of what would
happen to employees who got "on the wrong side of the fence."
The foremen's practice of "intimating" to the employees that they would like
to see any union literature which the employees received as leaflets or through the
mail was continued without interruption. Both Hawk and Chase had their em-
ployees turn such literature into them in their department without making any
objection thereto.is
Sometime after Hawk had told Lulu Mae Harper that the settlement notice was
not important enough to read, Hawk saw her in the plant prior to starting time
and told her "to keep her eyes and ears open and if she heard anything about
anybody having anything to do with the Union" to be sure to let him know so
he could get rid of them-an instruction practically verbatim with the instruction
he had given Harper in her earlier period of employment prior to the settlement
agreement.
In July 1957, Newman and Foreman Williams drove over to the home of Zackie
Wolverton where Wolverton was asked if he had ever heard anyone talk about the
Union in the kiln department. Although the record is not absolutely clear on the
point, this was apparently at the time when Newman and Williams were investi-
gating a report from another informer that Organizer Kanatzer's automobile had
been parked near the plant fence one night and that someone was supposed to
have been seen talking with Kanatzer at the fence.
Pursuant to Newman's earlier instructions to report anyone who happened to
mention the Union to him, John Henry Smith did report to Newman that two
employees, Cook and Foster, had asked him at a restaurant downtown if he
wanted to sign a union card and urged him to do so. At that time Newman stated
that he only wished that they would do that during working hours.'? At a sub-
sequent conversation between Newman and Smith, Newman told Smith that he
la Respondent advanced the contention that the foremen were merely curious as to
what the union leaflets had to say about them. This, however, does not account for the
foremen's willingness to receive innumerable copies of the same leaflet.
17 This is the first of only two episodes wherein the Respondent gave any indication of
any limitation as to time and place in the employees' right to engage in union activities.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was filing charges against the Union and if anyone should happen to "threaten"
Smith, to please let him, Newman, know.18 There is no showing in this record
that Newman ever rescinded his instructions to Smith to report any union activity
after the settlement agreement was posted. Nor is there any evidence that New-
man rescinded similar instructions given to other employees. In fact, there is a
dearth of evidence that such employees were discouraged from making such re-
ports in any manner.
When Lottie Seward was reemployed in July 1957, Newman asked her how
she felt about the Union. Sometime afterwards Lowrance asked her the same
question and then went on to add that there had been some threats made by the
Union and Seward should feel free to tell him of any threats made to her as he
wanted to protect the employees.
Some weeks after Lilly Meyers had been rehired on May 25, 1957, Hawk asked
her if she knew of any of the employees who had signed a pledge card.
Sometime in September 1957, while acting on direct orders of Hawk to con-
tinue to feel out the employees about the Union, Perry went to lunch outside the
plant with Cleveland Lacey, Jr. After lunch that day Hawk took Perry into the
plant lunchroom saying that he had heard something that he did not like. Hawk
there told Perry that Lacey, Jr., had reported to Hawk that Perry had tried to
get him to join the Union and to sign a card and that he, Hawk, was not going
to have anything like that in his department. Hawk then accused Perry of having
signed a union card which Perry denied. Hawk stated that he was not going to
have any employees working for him who had signed pledge cards. Hawk there-
upon took Perry to Newman where, in Hawk's words, "we come to find out" that
the so-called solicitation occurred at lunch time away from the plant with the
result that Perry was finally allowed to return to work.19
Although Ida Buford and Ruby Bounds, two employees in the glaze sorting
department, denied making reports to Respondent's management during their testi-
mony as witnesses on behalf of the Respondent, the testimony of Lowrance and
Newman indicated that they had each been reporting to either Newman or Low-
rance on Foreman Scoggins for at least 6 months prior to his discharge. It is also
undenied on this record that both Foreman Scoggins and Graves had objected to
Newman's blatant use of Buford and Bounds as informers or, in their phraseology,
as "pimps." In answer to Graves complaint, Newman asked what they should do
to Bounds and suggested "Fire her?" As a matter of fact, Buford was actually
promoted into Edwards' supervisory position soon after Foreman Scoggins was
discharged on the basis of Buford's signed affidavit against him.
b. Discharge of Foreman Scoggins and employee Echols
As noted heretofore, the Respondent hired John Scoggins later in 1955 and sent
him to the Mosaic plant at Zanesville, Ohio, for several months training as fore-
man in the glaze sorting department. Scoggins had been the only foreman in that
department at the Jackson plant from the time it commenced operations until his
discharge on August 30, 1957.
Ralph Echols began his employment with the Respondent in March 1956, in the
kiln department but subsequently requested and received a transfer to the glaze
sorting department under Scoggins in order to work the daylight shift so that he
could attend junior college at night under the GI bill. In the kiln department
Echols received two raises and, after his transfer, he received one automatic 5-cent
per hour increase in November 1956, and in March 1957 received 4-cent per hour
increase when he added the duties of tow motor driver to his regular duties as
carton stacker.
18 Although no charges were ever filed against the Union , Newman testified that
"numerous threats" by the Union were reported to him. The record shows that Newman
used this word "threat" in a very loose sense.
'' Hawk's explanation for the fact that he had not discovered that this alleged solicita-
tion had taken place on Perry ' s own time and away from the plant was that "I was just
assuming that my employees knew that that no -solicitation rule applied to working hours
and company property."
This episode is the second in which the Respondent gave an indication that the
employees could engage in union activities on their own time and away from the company
property . Both instances occurred after the settlement agreement.
The speed with which Lacey, Jr., reported this alleged solicitation to his foreman would'
tend to indicate that the threats that Hawk made in his departmental meetings had
succeeded in turning his employees into informers , which, of course , was one result to
be anticipated from the threats.
JACKSON TILE MANUFACTURING COMPANY 783
About the middle of January 1957, Newman stopped at Echols' place of work
during one of his tours through the plant to inquire about the health of Echols
and his family. During the course of this conversation Newman asked Echols if
he were "for the Union" which Echols denied. After referring to the high union
fees, Newman inquired "how would you take care of your wife and family and
keep up your payments" in the event that the Union got into the plant and then
went on strike. Newman ended the conversation by asking which way Echols
thought that the department "was leaning." Echols replied that he thought that
the department was against the Union.
On or about Thursday, August 15,20 during the afternoon rest period employee
Ila Buford called Echols to her work station, inquired "how things" were going
and "how is the Union." She then requested Echols to "explain" the Union to
her which Echols stated he was unable to do. Buford thereupon told Echols that
a union representative had called on her at her home a few nights before and that
when she informed Newman of that visit, Newman had told her that he would
"like to know" of any other contact that she might have with any union repre-
sentative. After the buzzer had sounded and they returned to work, Buford again
asked Echols to come to her home that evening and explain the Union to her, but
Echols refused on the grounds that he had to attend night school and because he
knew nothing about the Union. Buford continued the conversation by saying that
Newman had also told her that he would know if and when any employee signed
a union card. Echols denied this possibility stating that any employee could sign
a union card without Newman's knowledge and cited the fact that he, himself,
had signed one and that Newman did not know about it. With that the conver-
sation ended.21
When Scoggins returned to work on Monday following an illness extending over
the previous week, Buford reported to Scoggins that employee Willie McDonald
was "Union." When asked what evidence Buford had of that fact, Buford an-
swered that she "just knew." Buford continued by announcing that she also knew
that Echols was for the Union because of the way he had talked to her during
the time Scoggins was ill. Scoggins warned Buford that such accusations could
cost the employees their job and asked her to be careful.
Subsequently McDonald came to Scoggins worried over the fact that Buford was
accusing her of being "Union." Because of her worries on that score Scoggins
secured an appointment with Newman for her.
Also Scoggins promptly asked Echols about his conversation with Buford.
Echols acknowledged the occurrence of the conversation and that Buford had
asked him to explain the Union to her but denied having solicited her or attempt-
ing any explanation of the Union. Thereafter Scoggins reported back to Buford
that Echols had denied her story, that he could do nothing because it was only
a case of Echols' word against hers and suggested that the matter, therefore, be
kept within the department.
At quitting time on Thursday, August 22, Buford asked Scoggins if he had told
Newman about her report regarding Echols. Scoggins stated that he had not as
Echols had denied the whole thing so that it was just "her word against his" so
that Scoggins thought that it should not go to the office.
That same evening after leaving the plant Buford telephoned to Newman and
asked him to come to her home as she had something to tell him. Newman
thereupon drove to her home where Buford told him her story of her conversa-
tion with Echols.
Just hefore quitting time the next day, Friday, Lowrance inquired of Scoggins
about his department. Scoggins admitted that there were "factions" in his depart-
21All dates hereinafter are in the year 1957 unless otherwise noted.
m The Trial Examiner has accepted Echols' version of his conversation with Ila Buford.
Echols appeared to be an honest, straightforward witness.
Ila Buford's testimony differed in detail not only with that given by Echols but also
with her own various versions thereof. On August 31 at the Respondent's request Buford
signed an affidavit before Respondent's attorney in which she related one conversation
with Echols during which he asked her to sign a card but made no threats in the event
she refused. On direct examination as a witness for the Respondent Buford testified that
she had two conversations with Echols during which he solicitated her membership once
and made one threat if she failed to sign. However, before she left the stand, Buford
testified that she had two conversations with Echols during which he had solicited
her membership on two occasions and had also made one threat. Obviously Buford's
testimony was susceptible to suggestions.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment caused by such things as Buford accusing McDonald and Echols of being
"Union." 22
That Friday evening after work both Lowrance and Newman drove to the
Buford home where Buford once again related her story and in answer to a ques-
tion by Lowrance agreed that she would sign an affidavit about the matter.
On Saturday morning Lowrance again inquired of Scoggins about the factions
in his department and, at Scoggins ' suggestion , interviewed department employee
Ruddock and , subsequently , Ruby Bounds . From the testimony of Lowrance, it
appears that these interviews dealt with the friction or factions in the department
but not with any act of solicitation . During her interview Ruby Bounds admittedly
reported that Scoggins told "dirty jokes" and played favorites among the employees
in the department . According to Lowrance , management had been receiving simi-
lar reports regarding these alleged "dirty jokes" over a period of 6 months or more,
that Bounds had been one of the informers but he "couldn 't honestly say" if Ila
Buford had also previously reported that matter or not.
At noon that day Lowrance and Newman again asked Scoggins as to what was
wrong with his department . At this time Scoggins blamed the factions in the
department on the fact that Newman 's "informers " had the department "all shook
up" by accusing other employees of belonging to the Union and thereby causing
the other employees to be afraid to do anything for fear of further reports to
management from Bounds and others . At this point Lowrance asked if Scoggins
"still don't believe that Ralph Echols belongs to the Union ?" Scoggins stated that
he had no proof of it. Whereupon Lowrance asked "if you had a sworn state-
ment to the effect that Ralph Echols was working for the Union , what would you
do?" Scoggins answered "if I had that , I would have to let Ralph Echols go."
Newman answered affirmatively to a question by Lowrance as to whether Newman
had "an affidavit to the effect that Ralph Echols was working for the Union?"
But when Scoggins requested the informer 's name, Newman answered "I would
rather not bring her name out into the open."
Each workday thereafter Lowrance and Newman made it a practice to ask
Scoggins what he was going to do about Echols and inquire "you still don 't believe
Ralph was working for the Union ?" Scoggins protested that he had no proof that
Echols was working for the Union or had been soliciting , that he was doing a
good job and so he did not want to discharge Echols.
Finally Friday afternoon , August 30 , just before the end of the day's work
Scoggins was called to the office of Lowrance where Stuenkel was sitting. Low-
rance informed Scoggins that they were going to "have to ask him to resign."
When Scoggins asked for the reason behind this request, Lowrance answered "John,
in the first place, you knew that solicitation was going on in your department and
you never reported it to me John, we have got a signed statement that you
have been telling dirty jokes back there to the employees and that you knew that
soliciting was going on." When Scoggins protested that Lowrance had been mis-
informed and reminded him that in the past he , Scoggins , had assisted in getting
rid of employees whom Respondent had conseidered to be for the Union, Stuenkel
spoke up and said "John, I hope we find out one of these days that you are tell-
ing, the truth , but since we have got a sworn statement before God Almighty,
there,is nothing left to do but let you go ." Scoggins was thereupon discharged.
On the following day, Saturday, August 31, Newman and Lowrance took Ila
Buford over to Attorney Hurst's office where an affidavit was prepared and signed
by Buford in which she related that Echols had solicited her (without any threats)
to join the Union on Thursday , August 15.23
On September 3, the next working day , Ralph Echols reported to work as usual
and was sent by Foreman Gill, who had succeeded Scoggins , to Newman 's office.
Newman said "we have got reports on you of campaigning for the Union at night
and soliciting for the Union in the daytime . for that we are going to have
to let you go ." When Echols denied the truth of these accusations , Newman
stated "we have two statements from two girls that it is true ." Echols requested
Newman to bring his two witnesses forward so that they could get "this thing
settled ." Newman answered "no, I will bring my witnesses forward in time."
Thereupon Newman ordered Echols to get his belongings in the plant "but not to
say a word to anyone" and leave the plant for good.
Lowrance admitted that at this time Scoggins told him that Buford had reported to
him that she suspected Echols of having engaged in union activities and denied that
there was any proof of any "solicitation."
23 This was apparently the affidavit to which Stuenkel and Lowrance had prematurely
referred on August 30, when they discharged Scoggins.
JACKSON TILE MANUFACTURING COMPANY 785
Subsequently that same Tuesday morning Tipsie Edwards , the supervisor under
Foreman Scoggins, requested a meeting with Lowrance regarding the discharge of
Scoggins. At this meeting Lowrance told the assembled group of employees that,
although he hated to see Scoggins go, he, Lowrance had had no other choice as
Scoggins had not been loyal to the Company, had tried to cover up an act of
solicitation which Echols had admitted, had not been "company wise" and besides
did not have the high moral character a foreman had to have so that Respondent
had to discharge him. The employees agreed that Lowrance could not have done
anything else.
However the following Friday Edwards happened to see Scoggins at the bank
and stopped to talk to him. On Monday Foreman Gill, who succeeded Scoggins
as foreman, "intimated," to use Gill's phraseology, that Edwards was under sus-
picion because of her friendship for Scoggins. Later that same day Lowrance,
having learned from sources not disclosed in the record of Friday's conversation
between Edwards and Scoggins at the bank, cautioned Edwards against having
anything to do with Scoggins.
When Edwards' supervisor's position came open later in September Buford was
promoted to it, but a short time thereafter returned to her prior position.
c. Wage increase and enclosure
In June or July 1957, and prior to the time in August when the Union petitioned
for the holding of an election at the plant, Lowrance announced at a foremen's
meeting that Respondent planned to grant a substantial plantwide wage increase
"in the fall" if business kept up. There is evidence in the record which was dis-
puted that, when asked to be specific as to what he meant by "in the fall," Low-
rance answered that he could not do so as Respondent was announcing the pro-
posed increase at the time so that it would be "in the clear" in giving the increase
later when it could affect the Board election.24
On August 15 the Union petitioned for an election.
On September 30, following a reminder in union leaflets of the proposed wage
increase, Respondent announced a 6-cent per hour across-the-board increase to
be in effect.
On October 11 the pay envelopes of the employees contained their first checks
at the new wage rate. Included in the pay envelopes with the checks was a yellow
5" x 11" paper containing four pictures with four captions. The first picture de-
picted a magician fulling a rabbit out of the hat captioned "Wage increases result
from business profit-not union magic." The second depicted a flowering plant
with money growing on its branches captioned "You work for your money, it
doesn't grow on trees. Why give it away for union dues?" The third showing a
man blindfolded announced "Use your eyes. Don't be blinded by union promises."
The final picture showed a royal heart straight flush poker hand with the admo-
nition "Be wise-stand pat, you've got a good deal now."
Although renouncing any claim of authorship, Newman took credit for the in-
clusion of this enclosure in the pay envelopes.
C. Conclusions
1. Creditability
The briefs received in this case make it clear that the decision here resolves
upon credibility. Respondent's brief states "the Company's position is that no
unrefuted testimony of any violation of either the settlement agreement or the Act
was introduced at the hearing and that, in fact, no violation of either has occurred."
The General Counsel's brief which hardly notes the generalized denials made at
the hearing by the Respondent's witnesses indicates that his position is just to the
contrary.
There can be no question but that the General Counsel has proved innumerable
violations of the Act if one believes the testimony given by his witnesses. How-
ever, the attorney for the Respondent does not appear to concur for he says in
his brief "concerning the Employees Council, it is submitted that while it is no
longer in existence, nevertheless the General Counsel failed to prove any violations
pertaining thereto." It is hard to believe that the Respondent's attorney can be
serious in this contention. But he contends further (based partly on creditability)
that the General Counsel "failed to prove that the Company had violated any pro-
24 Lowrance denied making this statement . In view of subsequent actions by Newman,
the Trial Examiner does not think the aforementioned conflict need be resolved.
505395-59--vol. 1.22-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visions of the National Labor Relations Act or of the Settlement Agreement of
May, 1957."
Therefore, it is necessary to speak of credibility.
Before going into credibility as such, there are a few matters in this record
which are unrefuted and must be considered here.
1. There can be no dispute but that in June 1956, after the first distribution of
union leaflets and after consultation with its attorney, the Respondent permitted
Foreman Hawk to send employee Lee Perry to collect union leaflets and union
pledge cards from employees living in towns within a 25-mile radius of Jackson
for which service the Respondent paid Perry his mileage and time. Respondent
contends that this was a volunteer act by Perry. Whether voluntary or not, the
effect of Perry's action was to interfere with, restrain, and coerce the employees
in violation of Section 8(a)(1) of the Act.
2. There can be no question but that the Respondent made use of the services
of Henry Payne to spy upon union meetings and to report to Newman immediately
thereafter as to the employees in attendance, those who had signed union cards
or displayed an interest in the Union, and as to the future union plans. For this
service Payne received at least gasoline money on several occasions from the
Respondent.25 This is another violation of Section 8(a)(1) of the Act.
3. It is also admitted that upon orders from the Respondent's board of directors,
Newman for the Respondent formed, dominated, and contributed to the financial
support of the Employees Council of Jackson Tile Manufacturing Company whose
minutes prove it to have been a labor organization within the meaning of Section
2(5) of the Act. This was a violation of Section 8(a)(1) and (2) of the Act.
4. The pay raise of September 30, 1957, was granted and used by the Respond-
ent in a deliberate effort to interfere with the free choice of its employees in the
representations election conducted by the National Labor Relations Board. All
question as to this was removed by Newman when he had the aforedescribed yellow
leaflet with its four pictures and four antiunion captions enclosed in the pay enve-
lopes containing the first checks figured at the increased rate. As the Supreme
Court has recognized heretofore, sometimes more flies can be caught with honey
than with a fly swatter. Newman's enclosure proved that the Respondent was at
least trying that method. This constitutes a violation of Section 8(a)(1).
5. It is further undisputed that, acting upon the word of another informer,
Foreman Hawk was only stopped from discharging Lee Perry as late as September
1957 for allegedly soliciting a union membership when it was belatedly and for-
tuitously disclosed that the so-called solicitation happened to occur on the em-
ployee's own time and away from the Respondent's property. This alsb amounted
to coercion within the meaning of Section 8(a)(1).
Contrary to the Respondent's contention, these 5 facts, 3 occurring prior to the
settlement of May 1957 and 2 subsequent thereto, were, in fact, unrefuted and
admitted-except as to the legal consequences thereof. The credibility of wit-
nesses must be considered against this background.
As noted heretofore, Respondent contends in its brief that there is in this record
no "unrefuted" evidence of any violation of the Act. Technically perhaps this
may be so, excepting the five instances noted heretofore, if one can accept denials
of generalized legal conclusions at face value because the witnesses for the Respond-
ent did deny having "coerced" or "threatened" anyone. However, some of these
denials are so absurd as to be unbelievable. For instance, Newman made such
denials in the face of his admissions that he had made use of the services of
Henry Payne as an espionage agent, that he had permitted Foreman Hawk to use
employee Perry's services in collecting union literature from the employees and
that he had on orders of the Respondent's board of directors formed, dominated,
and financed the Employees Council. Foreman Hawk made similar denials in
the face of his abortive attempt to discharge Perry in September 1957 for allegedly
"soliciting" for the Union and sending Perry to collect union literature from em-
ployees. Hawk admitted having done everything he could "within the law" to
defeat the union organization efforts. The only trouble was that Hawk's interpre-
tation of what was "within the law" differed radically with that of the Board and
the courts. Foreman Chase denied "ordering" his employees to turn over mail and
leaflets received from the Union to him, but did admit having told those employees
25 The only disputes between Payne and Newman as to this entire episode concern the
amount of money so paid and whether or not there was an unsuccessful attempt to have
Payne carry a two-way radio set into the union meetings. As neither of these matters
affect the violation of Section 8(a)(1) at all, the Trial Examiner sees no reason to
resolve the minor conflicts referred to.
JACKSON TILE MANUFACTURING COMPANY 787
that he would like to see such literature. Foreman Gill denied telling Edwards
that she was under suspicion by the Company because of her contact with ex-
Foreman Scoggins but admitted "intimating" the same thing to her. Foreman
Robbins indulged in a bit of semantics in denying having "kicked" Perry while
admitting that he had "nudged" Perry with his foot.26 Employees Ila Buford and
Ruby Bounds denied reporting to Newman or Lowrance even after Newman and
Lowrance had testified positively to the contrary as had other witnesses.
Actually there were very few conflicts between the witnesses for the General
Counsel and those for the Respondent because the witnesses for the Respondent
made almost no factual denials and, when they did testify as to facts, those facts
generally corroborated those previously given by the witnesses for the General
Counsel. When the Respondent did deny anything, it was generally in denying
legal conclusions or in broad generalizations.
2. Interference, restraint, and coercion
a. Post settlement
The question left then is whether, after the settlement, the Respondent continued
to commit the same or similar unfair labor practices as it had prior thereto. If
it did, then the Regional Director was correct in rescinding the settlement agree=
ment and in reinstating the original charges against the Respondent. If not, he
was wrong.
This is a pure factual determination. A reading of the findings of fact makes
the answer so clear as to make any extended discussion of the question here appear
to be almost an unnecessary extension of this Intermediate Report.
The facts disclosed that Newman and the Respondent continued its policy of
coercion and restraint against the employees on matters pertaining to the Union
just as it had done prior to the settlement. With the posting of the settlement
agreement, Hawk publicly stated that the settlement was a mere "formality" and
"unimportant." Newman and the Respondent acted accordingly.
Newman continued his informer system without let or hindrance after the settle-
ment just as he had done previously. He recruited new informers, he encouraged
the old ones. He interrogated employees about their own feelings and sympathies
about the Union. He encouraged employees to report to him on the feelings and
sympathies of their fellow employees about the Union. John Henry Smith was
encouraged throughout this period after the settlement to report any employees
who might talk about the Union to him. Lee Perry was ordered by Newman and
Hawk to "feel out" his fellow employees and report back his findings to them.
The same was true of Lulu Mae Harper and of Lottie Seward. Such long-stand-
ing informers as employees Buford and Bounds continued their activities along
those lines.27 In addition the speed with which Lacey, Jr., and Hosea Anderson
reported matters concerning the Union when it was mentioned to them by Lee
Perry or the General Counsel is significant as to the effects of Newman's informer
system upon the ordinary employees who were made conscious of the dangers of
any conversation about the Union upon their own employment status through
remarks by Newman and Hawk particularly. Hawk made it clear that no one
who was for the Union could work for Respondent and cited the discharge of
Scoggins as proof of that fact. The record makes it clear that Newman's informer
system continued unchanged after the posting of the settlement agreement.
21 In its brief the Respondent would have Perry's evidence discredited because he "in-
credibly enlarged what was a mere nudge" into a "kick." A reading of Perry's testimony
disproves this contention.
27 Newman and Lowrance during their testimony admitted having received reports about
John Scoggins from Buford and Bounds for at least 6 months prior to his discharge.
Although it is true that these reports allegedly were restricted to the fact that Scoggins
had been telling "dirty stories" to his "favorites" in the department or was engaging in
what was referred to in this record as "immoral" conduct on duty, it is a fair inference
that these reports were not so limited. In fact the inquiry made by Newman and Lowrance
of Tipsie Edwards in September 1957 as to the union membership of employees Clara
Wolverton and Fay Flanagan is quite conclusive proof that Bounds' reports, at least, were
not so limited because the inquiry of Edwards by Newman followed almost immediately
after Bounds had bragged to Edwards that she "had enough on " Wolverton, Flanagan,
and an unnamed foreman to get them fired. In addition, Buford wasted no time in report-
ing to her foreman, Scoggins, her version of the conversation with Echols about the Union,
and, when that did not produce the results she desired , in going over Scoggins' head to
report to Newman and Lowrance.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newman and Hawk compensated for the loss of the services of Henry Payne
as their spy within the union meetings by letting the employees know, indirectly
in the case- of Newman through passing that information on to Ila Buford who
repeated the statement to Echols and directly by Hawk in his departmental meet-
ings, that the Respondent would know the very next day if any employees should
sign a union authorization card and that anyone who had signed such a card
would not, or could not, continue to work for the Respondent. The Board and
the courts have universally recognized that such statements made by management,
regardless of their truth or falsity, are coercive and are in violation of Section
8(a)(1). If the statements are true, it means that the Respondent is actually
engaged in espionage or surveillance of union activities. If untrue, such statements
with their clear implication that management is engaged in espionage and sur-
veillance are probably even more coercive so far as the employees are concerned
because the employees are in effect advised that their every act or statement regard-
ing the Union is known to the Respondent. In either case the Board and the
courts uniformly hold that management has violated Section 8(a)(1) thereby.
After this settlement Newman, Hawk, and the other foremen continued their
practice of "intimating," at least, to the employees that they should surrender any
mail or leaflets received by them from the Union.28 Hawk continued to use the
services of Lee Perry to enable him to order the employees to roll up their car
windows and to refuse union leaflets being distributed at the gates in order to
demonstrate their "loyalty" to the Respondent and its officials who would be watch-
ing. This effort went to such extremes that Hawk had Perry drive some of the
employees past the distributor in order to prevent their receiving any literature.
No employee could miss the implication from these arrangements . Hawk appar-
ently considered this effort of his to be "within the law." Neither the Board nor
the courts agree. Thus, it is clear that the settlement agreement had no deterrent
effect upon the course of interference, restraint, and coercion upon which the
Respondent had embarked at the very opening of the plant.
The record is clear that the Respondent continued on this same course right
down to a few days before the hearing because it was only then, a few days before
Perry was to become a witness for the General Counsel, that Hawk took occasion
to remind Perry that the Respondent's officials "would see and hear the witnesses"
at the Board hearing, an obvious attempt to frighten Perry out of testifying. Fur-
thermore, Hawk instructed the employees in his department to say "no" if anyone
should ask them if he, Hawk, had ever mentioned the Union in his departmental
meetings. This conformed to the Respondent' s usual practice of preparing for
Board investigations by briefing the employees on what they should and should
not say to the field examiner and by preparing documents "to make the discharges
stick." This practice of briefing its employees amounts to coercion in violation of
Section 8 ( a)(1). In addition, it well may constitute a violation of Section 12
of the Act also.
In this regard it is interesting to note that the Respondent's brief says "Fore=
man Graves, while still employed at the company, secretly gave a statement to the
NLRB investigator, just a few days after his friend Scoggins was fired." (Empha-
sis supplied.) The implication of the italicized words is clear. The Respondent
still considers it wrong for a "loyal" employee to give a statement to a Board
field examiner without first consulting the Respondent. Loyalty to Company ap-
pears more important than loyalty to the truth.
It is so well recognized that the matters referred to herein amount to interfer-
ence, restraint, and coercion in violation of Section 8(a)(1) of the Act as not to
require any citation of authorities.
As noted heretofore the settlement of May 28, 1957, provided for three things:
(1) the disestablishment of the Jackson Tile Company Employees Council; (2) the
payment of $550 to Johnnie H. Neal; and (3) that the Respondent would refrain
from interfering with, coercing, or restraining its employees in their right to exer-
cise the rights guaranteed to them under Section 7 of the Act with a specific pro-
viso that the Respondent "would not encourage its employees to act as informers."
From what has been said here it is clear that, while the Respondent did fulfill
the first two of these obligations, it did nothing to fulfill the last of these obliga-
tions. In fact Newman and the Respondent went on after the settlement inter-
fering with, restraining, and coercing its employees exactly as it had previously.
29 Although the episode occurred prior to the settlement, the interest displayed by
Newman and Hawk in the discovering that the union application card was missing from
the union leaflet received by Henry Payne clearly indicates why the Respondent retained
such an interest in the literature received by the employees.
JACKSON TILE MANUFACTURING COMPANY 789
Therefore the Respondent has not fulfilled the obligation it assumed in making the
settlement of May 28, 1957. Due to Respondent's willful disregard of this obli-
gation the Regional Director under established law had the right, if not the duty,
to rescind the settlement agreement and to reinstate the original charges made by
the Union. Contrary to Foreman Hawk's public declaration, this settlement was
neither unimportant nor a mere formality. Nor did the settlement agreement con-
stitute a license for Respondent to continue the practice of its previous coercive
tactics against union organization.
b. Presettlement
Everything mentioned in the preceding section of this Report also occurred prior
to that settlement. Only 1 or 2 additional refinements on that coercive course of
action need be mentioned here.
This presettlement period was marked by Newman's use of Henry Payne as an
espionage agent to attend union meetings and to report about them and the indi-
viduals involved immediately afterwards. Newman gave Payne some money so
that he could continue this "cloak and dagger" work for the Respondent just as
he had paid Lee Perry for collecting union literature. At the hearing the Respond-
ent appeared to defend its activities along this line on the grounds that both Payne
and Perry "volunteered" their services. In the first place, even assuming that Payne
and Perry had volunteered, that constitutes no defense to the Respondent as the
coercive effect upon the employees of such services, voluntarily or paid, remains
exactly the same in either case. In the second place, it is undenied that Payne,
at least, "volunteered," to use the Respondent's phrase, because he knew that if
he wanted a job he had to volunteer. Volunteering under these conditions is
hardly voluntary.
The other episode worthy of special mention here was the Respondent's instruc-
tion to Tipsie Edwards, a minor supervisory official, clandestinely to search through
the personal effects of employee Peggy Sims looking for and reporting upon the
presence of any union literature.29 This activity also is a violation of Section
8(a)(1). It also indicates how far Newman was willing to go in order to prevent
the Respondent's employees from engaging in union affairs. It is further undenied
that, when Edwards was promoted to her minor supervisory job, she was instructed
by Newman that it was her duty to keep down solicitation and union talk.30
In this same manner, Respondent interfered, restrained, and coerced its em-
ployees before the settlement just as it did after the settlement, all in violation
of Section 8(a)(1) of the Act.
3. The discharges
a. Post settlement
(1) Scoggins
The facts presented by the General Counsel indicate that Foreman John Scog-
gins was a victim of Newman's informer system.
The evidence shows that for a year and approximately 9 months prior to his
discharge on August 30, 1957, Scoggins had been perfectly satisfactory to the
Respondent as a foreman. When in 1956 Newman had wanted to discharge the
McNeils because they had attended union meetings, Scoggins had in accordance
with instructions made preparations to get rid of them by making written repri-
mands against them, had conducted a phony and incomplete test of chipping and
scratching tile by the stackers to justify their discharge and had cited that sup-
posed test as the alleged reason for their discharges. In addition when a field
examiner investigated those discharges, again acting on Newman's orders, Scoggins
had reworded his previous reprimands in order "to make the discharges stick."
In cooperation with Newman, Scoggins had arranged for Tipsie Edwards to search
the personal belongings of employee Peggy Sims looking for anything which might
connect her with the Union. Furthermore when National Labor Relations Board
investigations were conducted at the Respondent's plant over alleged unfair labor
29 Newman answered "Absolutely not" to the question "Mr. Newman, did you ever
instruct an employee to go through another employee's personal belongings?" The
testimony on this point was that Scoggins had instructed Edwards to search Sims' per-
sonal belongings when Newman arranged to call Sims into his office and away from her
desk. Thus the Newman denial hardly covers the situation here. However, the Trial
Examiner has considered this denial as a denial of the episode as a whole.
30 Newman failed to add any limitations as to time or place to this instruction.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices , Scoggins not only helped prepare the witnesses to give the right answers
to the investigating field examiner but also testified himself in the manner which
Newman had suggested. For this entire period while Scoggins assisted the Re-
spondent in its commission of unfair labor practices, neither Newman nor the
Respondent had any complaints to make of Scoggins as a foreman and, in fact,
periodically increased his salary. He was "loyal," he was "Company wise" and,
therefore, he was satisfactory to the Respondent.
But then, according to informer Ruby Bounds, on the day after a Board-con-
ducted election at the Vickers plant in Jackson, June 6, 1957,31 Scoggins told her
that the Union had won the Vickers election and added "I'll tell you, that would
be the best thing that ever happened to us, if we could get a union out here." 32
Trouble began for Scoggins on Monday, August 19, when Buford reported to
him that employees McDonald and Echols were "Union." Both McDonald and
Echols promptly denied to Scoggins that they were prounion though Echols ad-
mitted to Scoggins that he and Buford had talked about the Union a few days
before. On Thursday, August 22, there having been no tangible result from her
previous report, Buford inquired of Scoggins if he had passed her report regarding
Echols on to Newman and was told that Scoggins had not done so because he
had no proof of her accusation so that it was just Echols' word against hers so
that the matter should be kept within the department.
That same evening, after work, Buford telephoned to Newman who immediately
went to her home to interview her. The following evening, Friday, August 23,
both Newman and Lowrance repaired to the Buford home, after work for a fur-
ther conference. On Saturday, August 24, Scoggins' troubles came into the open
when Lowrance asked him what the trouble was in his department, and if he knew
that Echols was working for the Union. Scoggins promptly informed Lowrance
of the Buford report against McDonald and Echols but said that he had no proof
against either of the accused. When Lowrance mentioned the question of factions
in the department, Scoggins suggested that he pick an employee at random and
talk to her. After Lowrance had interviewed one such employee in private, he
then called Ruby Bounds into his office for another private interview.33 According
to the evidence produced by the Respondent, Bounds only informed Lowrance
about the "factions" in the department, and of Scoggins' "favoritism" and "dirty
jokes." 34
Following these interviews Lowrance and Newman called Scoggins into the office
and inquired again as to what was wrong with his department. Scoggins agreed
that there were factions but placed the blame for them on the fact that Newman's
"informers," including Bounds by name, were responsible therefor by reason of
their loose accusations that other employees were prounion. Then Lowrance in-
quired if Scoggins still did not believe that Echols belonged to the Union. When
Scoggins denied that he had any proof thereof, Newman stated that he had an
affidavit to the effect that Echols was soliciting for the Union, but refused to name
his informer.35
. Thereafter until his discharge on the following Friday, August 30, Lowrance
and Newman kept after Scoggins as to what he was going to do about Echols and
if he, Scoggins, still did not believe that Echols was working for the Union. Scog-
gins kept insisting that he had no such proof, that it was only Buford's word
against Echols'.
On Friday, August 30, Lowrance first asked Scoggins to resign, and, when Scog-
gins refused, Lowrance discharged him on the ground that he knew that soliciting
31 The Trial Examiner has taken judicial knowledge of the official records of the
Board, which show that an election was conducted at Vickers, Inc., Jackson, Mississippi,
in 'Case No. 15-RC-1516, on June 5, 1957, which was won by the union involved.
33 Bounds denied having reported this conversation to anyone.
11 Lowrance indicated that his choice of Ruby Bounds was purely fortuitous because
he just "thought" that she might be in the other "faction" because of the fact that
at one time she had publicly interfered with the distribution of union literature. It is
difficult to believe that Lowrance could have been so naive or so uninformed as not to
have been well aware of Bounds' reputation.
. 84 As this investigation by Lowrance had been sparked by the Buford report on alleged
prounion employees , and as Bounds had been reporting on the alleged favoritism and
dirty 'jokes for at least 6 months previously, it seems a fair inference that, despite her
denial, Bounds did not fail to report the remark of Scoggins about the Vickers election.
,, 115 If,New,man• had such an affidavit , Respondent did not produce it for the field examiner
or at the hearing . The only affidavit produced , was that of Buford which was dated 1
week thereafter.
JACKSON TILE MANUFACTURING COMPANY 791
was going on in his department which he had failed to report, had been telling
dirty jokes and playing favorites in the department. At this time Stuenkel re-
marked that the Respondent had a "sworn statement before God Almighty" so
that there was nothing else that the Respondent could do but to discharge
Scoggins.36
Up until the Echols' case, Scoggins had always been amenable to any action
necessary to discharge any employee considered by Newman or Lowrance to be
prounion. In the Echols' case he hesitated and asked for proof which he was not
given. This change in attitude could not have been missed by Lowrance, even if
we accept Bounds' denial that she reported the prounion statement made by Scog-
gins after the Vickers election. During the week the Respondent waited, it became
obvious that the Respondent could no longer count on Scoggins to discharge
employees whom the Respondent considered prounion without proof and could no
longer be counted on as a willing instrument in Respondent's campaign of coercion
and interference.
Lowrance advanced three reasons for the discharge of Scoggins: (1) that Scog-
gins first denied and then finally at the end of the week admitted that he had
received a report on an alleged act of solicitation, so that Lowrance became con-
vinced that the solicitation had in fact taken place which caused him to lose confi-
dence in Scoggins as a foreman; (2) that Scoggins refused to discharge Echols,
although Echols admitted that he had engaged in solicitation contrary to the
Respondent's no-solicitation rule; (3) that Scoggins told dirty stories, played favor-
ites among the employees, and was not of the high moral type a foreman should be.
Lowrance's own testimony disproves his first contention because he admitted that
on the very first occasion he criticized Scoggins' department, Scoggins acknowledged
that factions did exist therein and that he had a report from Buford that McDonald
and Echols were prounion. Hence Lowrance's own testimony makes it clear that
Scoggins did inform Lowrance of the Buford report promptly and, in fact, never
denied having received the same.
Lowrance referred to the Buford report as involving a case of "solicitation" in
violation of the company rule 10 against solicitation. More will be said regarding
rule 10 hereinafter. Sufficed to say here that solicitation, as interpreted by the
Respondent, included any mention of a union. But regardless of semantics, Scog-
gins never denied having received the Buford report though he did deny that he
had any proof of solicitation, because he only had Buford's word against Echols.
Hence a question of credibility existed. However, Lowrance showed that he was
not to be deterred from discharging an employee accused of being prounion on
any such technicality as to what did, or did not, constitute "solicitation" or upon
any such legal nicety as the proper resolution of an issue of credibility.
As for the second excuse given by Lowrance, the record is very clear that Echols
had consistently denied at all times to Lowrance, as well as to Scoggins, both that
he was prounion and that he had solicited any employee on behalf of the Union.
This claim by Lowrance that Echols admitted being prounion or soliciting does
not conform to the facts.
If the third claim really bothered the Respondent, it is strange that the Respond-
ent did nothing about it at all during the previous 6-month period while Newman
and Lowrance were receiving such reports from Buford and Bounds. It is also
strange that this contention suddenly became so important when the foreman
allegedly involved was refusing to discharge an employee considered by the Re-
spondent to be prounion without proof that the employee had in fact violated
company rules.
Thus, two of the claims made by Lowrance were false and the third unim-
portant.
The facts prove, and the Trial Examiner therefore finds, that the Respondent
discharged Foreman John Scoggins on August 30, 1957, because it discovered at
or before the time of the Echols' matter that Scoggins would no longer blindly
act as an instrument in the Respondent's campaign to prevent its employees from
organizing into a union through interference, restraint, and coercion as well as in
its campaign to rid itself by any means available of any employee considered by
it to be prounion, all in violation of Section 8(a)(1) of the Act.
(2) Ralph Echols
On September 3, 1957, Newman quite frankly told Echols that the Respondent
had, to discharge him because it had received reports from "two girls" that Echols
88 The l3uford affidavit was dated the following day, August 31.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been "campaigning for the Union at night and soliciting for the Union in
the daytime." 37
Of course, under the law the Respondent had no right to object at all to Echols'
campaigning for the Union at night when he was not working for the Respondent.
Certainly discharging an employee for that reason is a violation of Section 8(a)(3)
of the Act.
However, at the hearing the Respondent based its defense in the Echols' case
on the ground that Echols had violated the Respondent's no-solicitation rule. The
Employee's Handbook lists 13 "offenses which will subject an employee to disci-
plinary action, including discharge in the proper cases." In this list rule 10 reads
"soliciting during working hours on company property without permission." On
the surface this rule appears to be legal.
Respondent never defined "solicitation" in writing or verbally. Each official and
supervisor supplied his own definition or, as the Respondent's former assistant
personnel manager put it, "more or less knew" what solicitation meant. Inquiry
at the hearing proved that there was unanimity among the officials and supervisors
on practically only one thing: any mention of the Union constituted a violation of
rule 10. But Respondent had no rule prohibiting the employees from talking at
work. Lowrance himself testified that, whereas it would be a violation of rule 10
.for one employee to ask another "if he would like to become a member of the
Union," it would be no violation of the rule to ask an employee if he would like
to become a candidate for election as a departmental representative on the Em-
ployees Council. Lowrance attempted to explain this anomaly on the grounds that,
when the Council had been in existence, it was considered "company business" and,
therefore, no violation of rule 10.
In the second place, the Respondent's application of rule 10 proved that the
Respondent used said rule as another instrument in its arsenal to prevent any
organization among its employees. Newman's instructions to the supervisory staff
were either that they were to prevent solicitation for the Union or to prevent union
talk (without limitation as to time or place). Respondent's other coercive tactics
regarding union literature proves without question that the Respondent had no
hesitation in coercing its employees away from the plant and on their own time.
Newman's many oral instructions to the foremen contained no such time and place
restrictions as appeared in rule 10.
Furthermore the Respondent applied the rule exclusively to solicitation or talk
in favor of the Union. It is undisputed in this regard that Newman ordered his
foremen to interest the employees in the Employees Council on company time and
property. It is also undisputed that Hawk solicited Lee Perry to run for depart-
mental representative to the Council on company time and property. The elections
and meetings were held on company time and property. The record is replete
with instances where foremen solicited employees to become, or remain, antiunion
and, in addition, threatened reprisals against them in the event that they disre-
garded the foreman's exhortation, also on company time and property. Thus it
is clear that the Respondent's application of rule 10 made it into just another
weapon of coercion and another device through which to defeat any attempt by
its employees at union organization. The Board holds that such use of a so-called
no-solicitation rule in order to defeat union organization alone amounts to a viola-
tion of Section 8(a)(1) of the Act.
Hence the Trial Examiner must find here that rule 10 was so indefinite and
obscure and that its application proved beyond question that the Respondent used
it merely as a device to defeat organization so that said rule 10 is and was illegal.
Even if it is assumed that rule 10 was legal, under the facts found on credited
evidence here, there was, in fact, no solicitation in violation of rule 10 even though
there had been talk about the Union. Even if we assumed the facts as stated in
the many variations of Buford's testimony which would, of course, amount to
"solicitation" as Lowrance understood that term, then it appears that the Respond-
ent entrapped Echols into admitting his prounion sympathies and into soliciting
Buford. It also appears that Buford, Newman, and Lowrance also entrapped Fore-
man Scoggins.
The Trial Examiner is convinced and, therefore, finds that the Respondent dis-
charged Ralph Echols on September 3, 1957, because rightly or wrongly, it con-
sidered that Echols was prounion and was attempting to assist in the Union's
organizational effort in violation of Section 8(a)(3) of the Act.
37 If there were in fact two such affidavits, only the Buford affidavit of August 31, 195T,
was produced at the hearing.
JACKSON TILE MANUFACTURING COMPANY 793
b. Presettlement
(1) The discharge of Johnnie H. Neal
There can be no question on this record but that Foreman Stockstill discharged
Johnnie H. Neal because he thought that Neal "had been talking" to some of
Foreman Hawk's Negro employees about the Union-a reason which Assistant
Personnel Director Hunter translated into "Oh! you mean soliciting."
As Foreman Stockstill explained the discharge, Neal had disobeyed his instruc-
tions to "keep his nose clean" and "stay away from the Union." This candid
explanation proves that Respondent clearly discriminated against Neal in violation
of Section 8(a)(3) of the Act.
Again the Respondent attempted to make use of rule 10 to excuse its discrimina-
tory action against Neal. Even if we accept the testimony of Hosea Anderson,
which the Trial Examiner cannot do on this record, it is very doubtful whether
the verbiage attributed to Neal by Anderson amounted to "solicitation." Further-
more, there is again the question of entrapment.
The Respondent had reason to think that Neal was interested in the Union
because of the fact that he had told Anderson that he had union cards in his
automobile parked on company property. The Respondent, therefore, considered
Neal to be in sympathy with the organizational effort of the Union and for that
reason discharged him, a clear violation of Section 8(a)(3) of the Act.
(2) The discharge of the McNeils
There seems no need, and little reason, to spend much time on a discussion of
whether the discharge of the McNeils was discriminatory or not. The facts are
too plain.
The Respondent discharged the McNeils very promptly after Newman's espionage
agent, Henry Payne, had reported that the McNeils had invited him to a union
meeting. Furthermore Newman had Payne's report that the McNeils had attended
a 'meeting. Newman, therefore, considered the McNeils to be sympathetic to the
union organizational drive and determined to get rid of them. He promptly gave
orders to that effect to Scoggins who executed them speedily.
Subsequently when the discriminatory nature of the discharges of the McNeils
was investigated, the Respondent briefed its witnesses and had purported tests on
the chipping and scratching of tile typed up in order to cover up the discriminatory
nature of the discharges.
Accordingly, the Trial Examiner must find that the Respondent discharged
Thomas and Dorrence McNeil on August 15 and 16, 1956, because of their mem-
bership and activities on behalf of the Union in violation of Section 8(a)(3) of
the Act.
4. Wage increase of September 30, 1957
The inclusion of Newman's antiunion yellow enclosure in the pay envelopes on
October 11, 1957, containing the first checks showing concrete evidence that the
September 30 pay raise was actually in effect proved beyond question the Respond-
ent's purpose in unilaterally granting the wage increase. Unquestionably the Re-
spondent's purpose was to influence the employees and to interfere with the free-
dom of choice of the employees in casting their ballots in the representation election
which it was then known was going to take place. No employee who received his
increased wages on that day and read Newman's enclosure could have had any
doubt left as to the purpose for which that wage increase was made. In fact the
statement allegedly made by Lowrance in June could have made this no clearer
than did the enclosure. The Respondent was giving them more wages to cause
the employees to vote against union representation.
Early in the history of the Act it was recognized, even in cases decided by the
Supreme Court, that often more flies are to be caught with sweets than with a
fly swatter. Newman's yellow enclosure made it perfectly clear that Respondent
was trying that theory.
It has long been established law that where an employer grants his employees
a wage increase just prior to a representation election for the purpose of influ-
encing the employees to vote against union representation and to interfere with the
employees' freedom of choice in that election that said employer has interfered
with, restrained, and coerced his employees within the meaning of Section 8(a) (1)_
of the Act.38 Hence as the purpose of the grant of the wage increase here was
08 Bonwit Teller, Inc., 96 NLRB 608.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so clearly for that purpose the Respondent here: also violated Section 8(a)(1) by
the grant of the wage increase of September 30, 1957.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection. with the operations of the Respondent described above in section 1,
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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in numerous unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having' been found that the Respondent discriminated in regard to the hire
and tenure of John Scoggins, Ralph Echols, Johnnie H. Neal, Thomas McNeil,
and Dorrence McNeil by discharging each of them, the Trial Examiner will rec-
ommend that the Respondent offer to each of them immediate and full reinstate-
ment to his former, or substantially equivalent position, without prejudice to his
seniority or other rights and privileges and make each of them whole for any loss
of pay he may have suffered by reason of said discrimination by payment to' him
of a sum of money equal to that which he would have earned as wages from the
date of the discrimination against him to the date of the offer of reinstatement
less his net earnings during such period 39 in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife which burdens and obstructs commerce, and thus effectuate the policies of
the Act, it will be recommended that the Respondent cease and desist fromi in-
fringing in any manner upon the rights guaranteed in Section 7 of the Act.
The theory behind the Board's requirement that a respondent in an unfair labor
practice case must post a notice such as Appendix A attached hereto is that such
posting will restore the status quo by freeing the employees from the coercive
effects of the unfair labor practices practiced by such respondent. However, the
record in this case clearly demonstrates that the Respondent dissipated any such
effects from the posting of the settlement agreement of May 28, 1957, by having
the employees publicly informed that said notice was a "mere formality" and
"unimportant" and by permitting its officials and supervisory staff to continue the
practice of continuing the commission of the same unfair labor practices and
coercive tactics as committed prior to said posting in disregard of the contents of
said posted notice.
Therefore, because of the past experience in the posting of notices by the Re-
spondent, the Trial Examiner recommends, in addition to the usual posting of said
Appendix A attached hereto, that the Respondent take the following action in
regard thereto in order to attempt to restore the status quo by freeing the Respond-
ent's employees from the effects of the Respondent's continuing practice of coercion
and of other unfair labor practices and in order to prevent a repetition of the
Respondent's efforts to dissipate the intended effects of the posting of such notice:
1. That Appendix A be signed by the Respondent's plant manager as Respond-
ent's agent and, in addition, by Respondent's personnel director.
2. That the plant manager read said notice attached hereto as Appendix A to
the assembled employees, supervisory staff, and plant officials as an expression of
company policy.
3. That a printed copy of said Appendix A be distributed to each employee at
the next payday in his pay envelope.
Upon the basis of the foregoing findings of fact, and upon the entire record,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Glass & Ceramic Workers of North America, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5). of the. Act.
ao In the case of Johnnie H. Neal his back pay Is to be reduced by the $550 previously
paid to him by the Respondent.
b. K. VAN & STORAGE COMPANY 795
2.'By discharging Ralph Echols , Johnnie H. Neal, Thomas McNeil , and Dor-
rence McNeil, thereby discriminating in regard to their hire and tenure of employ-
ment and discouraging membership in United Glass & Ceramic Workers of North
America, AFL-CIO-CLC, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a)(3) and ( 1) of the Act.
3. By discharging John Scoggins for his refusal to engage in the interference,
restraint, and coercion of Respondent 's employees in order to prevent their exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By interfering with , restraining, and coercing its employees in the exercise
of the rights guaranteed to them in Section 7 of the Act , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a)( I) of the Act.
5. By dominating and interfering with the formation and administration of the
Employees Council of Jackson Tile Manufacturing Company and contributing
financial and other support to it, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(2) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
O. K. Van & Storage Company and Truck Drivers, Chauffeurs,
Warehousemen and Helpers , Local Union 941, Petitioner. Case
No. 33--RC-679. December 31, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to the Board's Decision and Direction of Election in
*the above-captioned matter dated June 27, 1958,1 an election by
secret ballot was conducted on July 19, 1958, under the direction
and supervision of the Regional Director for the Sixteenth Region
among employees in the bargaining unit found appropriate by the
Board. Upon completion of the election, the parties were fur-
nished a tally of ballots which showed that of approximately 21
eligible voters, 19 valid votes were cast. Of these, 10 were cast in
favor of the Petitioner, 8 were cast against the Petitioner, and 1
was challenged?
On July 24, 1958, the Union filed timely objections to the elec-
tion. In accordance with the Board's Rules and Regulations, the
Regional Director conducted an investigation and, on September 15,
1958, issued and duly served upon the parties his report on objec-
tions, in which he recommended that the objections be overruled,
and that the Board certify that a majority of the valid ballots
had been cast for the Petitioner. The Employer filed timely excep-
tions to the report.
1 vnpubltshed.
The challenged ballot was
election.
122 NLRB No. 95.
thus insufficient in number to affect the results of the