Lakeland Cement Co.

National Labor Relations Board - Board Decisions

Mar 15, 1961

130 N.L.R.B. 1365 (N.L.R.B. 1961)

11
LAKELAND CEMENT COMPANY 1365
CONCLUSIONS OF LAW
1. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employees
Leash Lobdell, Anna Hellicoss, and Alberta Hood, thereby discouraging membership
in the above-named labor organization , the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by 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. 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.]
Shelly Gordon and Palmer Gordon , Partners d/b/a Lakeland
Cement Company and Citrus, Cannery, Food Processing and
Allied Workers, Drivers, Warehousemen and Helpers Local
Union No. 444, affiliated with International Brotherhood'
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America. Cases Nos. 12-OA-1230, 12-CA-1268112-CA-M69112-
CA-1270, 12-CA-19271, 12-CA-1272, 12-CA-1273, 12-CA-1275,
12-CA-19279,,192-CA-1280, 12-CA-1282, 12-CA-19283, 12-CA-1284,
12-CA-1285,12-CA-1286,12-CA-1288, and 12-C4-1294. Marc/i
15)1961
DECISION AND ORDER
On May 23, 1960, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in any of the unfair labor practices
alleged in the complaint as amended and recommending that the com-
plaint as amended be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the General
Counsel filed exceptions to the Intermediate Report and a brief in,
support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Leedom, and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the:
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, ' except us ,herein modified.'
1 For the reasons set forth in detail in the Intermediate Repot , Member Rodgers would
affirm the Trial Examiner 's recommendation that the 'complaint herein be dismissed. With
respect to the finding by Members Leedom and Fanning that the Respondent violated the
Act by interrogating employee Johnson , Member Rodgers agrees with the Trial Examiner
130 NLRB No. 141.
1366 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner found that the Respondents did not violate
the Act by assisting employee Morris in processing employee union
withdrawal petitions. Members Leedom and Fanning hold, however,
that there is sufficient evidence in the record to find that the Respond-
ents violated Section 8(a) (1) of the Act by such conduct.
Morris campaigned against the Union and secured employees' peti-
tions withdrawing from the Union. The language used in such peti-
tions was given to Morris by management. The withdrawal petitions
were obtained by Morris from the employees on company property
and time. Shelley Gordon, one of the Respondents' partners, advised
Morris to tell the employees petitioning for withdrawal "to write a
letter and ask to resign from the union." After Morris asked Gordon
where the withdrawal petitions should be sent, Gordon gave him the
address of the National Labor Relations Board and thereafter left his
office for 2 or 3 days. When Gordon returned to his office, he noticed
that some sealed envelopes addressed to the National Labor Relations
Board were on his desk. He thereupon mailed the envelopes, which,
in fact, contained the withdrawal petitions.
Based on the foregoing, Members Leedom and Fanning conclude
that the Respondents knew that Morris was engaged in an antiunion
campaign, that they assisted and ratified his acts, and that they there-
by violated the Act.
2. Members Leedom and Fanning do not agree with the Trial Exam-
iner's finding that the Respondents did not violate the Act by inter-
rogating employee William Harold Johnson.
; On or about September 3, 1959, Johnson had an employment inter-
view with, Shelley Gordon, in the course of which Gordon asked what
Johnson thought of the Union. Johnson replied that he "didn't care
too much for the. Union." Gordon then wanted to know "how easy
Johnson was to be pushed around" and Johnson replied that he "had
too much temper to be pushed around by anybody." Gordon there-
upon stated' that Johnson sounded like the kind of fellow Gordon
wanted and that he "didn't care too much for the Union either."
In view of their previous finding that the Respondent assisted em-
ployee Morris in processing employee withdrawal petitions, from the
Union knowing that Morris was campaigning against the Union, and
because of the above facts concerning Johnson's interrogation, Mem-
bers Leedom and Fanning conclude that the Respondents violated
Section 8 (a) (1) of the Act by interrogating Johnson. They further
conclude that this conduct was encompassed within the general 8 (a)
1(1) allegation of the complaint ; it was fully litigated ; and the Gen-
that the Act was not violated by such conduct . ' He notes, moreover, as did the Trial
Examiner, that the complaint did not allege a violation regarding such interrogation ;
and he notes further that the General Counsel did not except to the Trial Examiner's
conclusion that the interrogation did not constitute an Independent violation of section
8(a) (1) of the Act.
LAKELAND CEMENT COMPANY 1367
eral Counsel's exceptions were sufficient 'to place the "issue before the
Board.
On the basis of the foregoing and the entire record, the Board here-
by rejects the Trial Examiner's conclusion of law numbered 3, and in
its stead makes the following:
CONCLusIONS OF LAW
3. By interfering with, restraining, and coercing its employees, the
Respondents have engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
5. The Respondents have not engaged in unfair labor practices
within the meaning of Section 8(a) (3) and (5). of the Act.
THE REMEDY
An order will be entered directing the Respondents to cease and
desist from the conduct found herein to have violated the Act.
ORDER
Upon the entire record in this case, and pursuant to' Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Shelley Gordon
and Palmer Gordon, Partners d/b/a Lakeland Cement Company,
Lakeland, Florida, their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating employees about their feelings and positions with
respect to the Union, in a manner constituting interference, restraint,
and coercion within the meaning of Section 8 (a) (1) of the Act.
(b) Participating in procuring or sponsoring withdrawal petitions
from the Union.
(c) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their plant at Lakeland, Florida, copies of the notice
attached hereto marked "Appendix A."' Copies of such notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being duly signed by an authorized representative, be posted by
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •
the Respondents immediately upon receipt thereof, and be maintained
by them for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material. •
(b) Notify the said Regional Director, in writing, within 10 days,
from the date of this Order, what steps the Respondents have taken, to
comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in all other respects.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate employees about their feelings and
positions with respect to the Citrus, Cannery, Food Processing
and Allied Workers, Drivers, Warehousemen and Helpers Local
Union No. 444, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
in a manner. constituting interference, restraint, and coercion
within the meaning of Section 8 (a) (1) of the Act.
WE WILL NOT participate in procuring, and -we will not sponsor,
union withdrawal petitions. _
WE WILL NOT in any like or related.manner interfere with, re-
strain, or coerce our employees in the exercise of the rights as
guaranteed in Section 7 of the Act.
All our employees, are free to become, remain, or to refrain, from
becoming or remaining members of the above-named or any other
labor organization.
SHELLEY GORDON AND PALMER GORDON,
PARTNERS d/b/a LAKELAND CEMENT
COMPANY,
Employers.
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 separate charges , as amended , filed by the above-named Union, the General
Counsel of the National Labor Relations Board , through the Regional Director for
LAKELAND CEMENT COMPANY 1369
the Twelfth Region (Tampa, Florida), issued an order consolidating the cases and
issued a complaint dated November 27, 1959, as amended January 28, 1960, against
the Respondent alleging that the Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a) (1), (3), and (5) of the Labor Manage-
ment Relations Act, as amended.. In its answer and amended answer the Respondent
admits certain allegations of the complaint but denies the' commission of any unfair
labor practices. Pursuant to notice, a hearing was held on March 1, 2, 3, and 4, 1960,
at Lakeland, Florida, before the duly designated Trial Examiner. The parties were
represented by counsel and were afforded opportunity to adduce evidence, to examine
and cross-examine witnesses, to present oral argument, and to file briefs. The General
Counsel and counsel for the Respondent filed briefs which I have fully considered.
Upon the entire record, and from my observations of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS
The complaint alleges, and answer admits, that the Company, a Florida partnership
composed of Shelly Gordon and Palmer Gordon, maintains its principal office and
place of business at Lakeland, Florida, where it is engaged in the manufacture and
sale of concrete pipe and allied concrete products. In the year preceding the issuance
of the complaint the Company purchased goods and materials valued in excess of
$50,000, which were shipped directly to it from places outside the State of Florida.
I find the Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The issues are: Did the Company (1) refuse to bargain in good faith with the
Union, (2) unilaterally reduce the work hours of certain union adherents in violation
of Section 8(a)(5) and (3) of the Act, (3) discriminatorily discharge Lloyd Davis
and constructively discharge five other employees, and (4) by various acts of its
agents interfere with, restrain, and coerce'its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The refusal to bargain
The Negotiating Meetings
On August 31, 1959, the Board certified the Union as the exclusive bargaining
representative for all the Company's employees in a unit composed of production
and maintenance employees including truckdrivers, exclusive of all other employees,
guards, and supervisors as defined in the Act.'
Following the certification, the Union and the Company held six negotiating
meetings in the interval September 22, 1959, and February 1, 1960, and engaged in
rather voluminous correspondence. During these negotiations William H. Wells,
business representative of Joint Council 89 (the Union is a council member), acted
as spokesman for the union bargaining committee, while Attorney Bowden acted as
spokesman for the company group. All the meetings were held at the New Florida
Hotel in Lakeland and the parties shared the costs of the meeting room.
The bargaining negotiations, as related by Wells, may be summarized'as follows:
At the first meeting, held on September 22, the Union submitted its proposed
agreement. Bowden pointed out the proposal in many respects did not apply to the
Company's operations and Wells agreed, explaining that the proposal had been
prepared by another representative of the Council. Bowden then suggested the
meeting be adjourned and he would prepare and present a counterproposal to the
Union at the next meeting . Wells asked for continuous negotiations but Bowden
was unable to fix a. date for the next session , due to other commitments, and promised
to communicate with Wells. The meeting then ended.
' Case No. 12-RC-655 (not published In NLRB .volumes). The election was held on
August 21, 1959, and of the 31 eligible employees in the unit 16 voted in favor of the
Union and 14 against It.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After an exchange of letters, the second meeting was held on October 12. At this
meeting the Company submitted its counterproposal which was the basis of negotia-
tions at this as well as subsequent sessions. The parties agreed on certain basic
provisions in the counterproposal and discussed other items such as seniority, griev-
ance procedure, and arbitration, without reaching any agreement. The meeting
closed with Wells asking for continuous negotiations as far as practicable. Bowden
declined this suggestion and stated he was not certain when he could next meet with
Wells but he would notify him by letter.
Bowden, by letter dated October 14, informed Wells he could meet with him on
November 3. On October 16, Wells wrote Bowden objecting to the delay and
requested a meeting be held during the week of October 19 or 26. On October 21,
Bowden sent a letter to Wells stating he was engaged in Board matters on November 3
and suggested they meet on November 5. On October 22, Wells sent a letter to the
Company to the effect that although Bowden may have other, commitments this does
not relieve the Company of its obligation to bargain.
On November 5, the parties again met and discussed the terms of the counter-
proposal and reached agreement, or tentative agreement, on about 14 items. The
meeting concluded in the same manner as the previous meetings.
After an exchange of letters the parties met on December 3. On this occasion the
parties reviewed the proposals and during the luncheon recess the Company pre-
pared a "package proposal" which it presented to the Union at the afternoon session.
Wells then asked the meeting be adjourned so he could discuss this proposal with
his committee and call a meeting of the employees. The meeting ended on that note.
On December 7, Wells wrote the Company that he had called a meeting of the
employees and they had rejected the proposal. Wells expressed the opinion the
parties were not too far apart on contract terms and suggested a meeting be held on
December 10 or 11. Bowden acknowledged the letter and stated he would meet
with Wells on December 17.
On the latter date the parties again discussed the Company's "package proposal"
and during the meeting the Union submitted its "package proposal" on some seven
open items. The meeting concluded with Bowden agreeing to communicate with
Wells concerning the Union's proposals.
On December 29, Bowden sent a letter to the Union giving the Company's position
on the Union's last proposal. The parties again engaged in correspondence and
then met on February 1, 1960.
On this date the parties discussed their proposals and while they were in accord
on many items they were unable to reach agreement on five provisions covering
arbitration , grievance procedure , and money items.
The Union made no request for further meetings and none have been held.
To support his theory that the Company failed to bargain in good faith the General
Counsel argues that while the Company agreed to many "trivial items" demanded by
the Union, the parties, after six meetings, were still far apart on substantive provisions
which is an important element in determining good -faith bargaining . Assuming the
correctness of this statement , it is wholly unwarranted by the evidence . Wells' version
of the negotiating sessions completely negates the idea that the Company was not
engaging in genuine bargaining or that it accepted only minor and unimportant de-
mands by the Union. Thus, in his letter of December 7, Wells advised the Company
that its "package proposal" had- been submitted to the employees at a meeting the
day before and:
I am sorry to report that the company proposal was turned down in its
entirety. Moreover, it is my personal opinion that we are not too far apart
on these issues and I•further feel that we should come to some mutual agreement
in our next meeting.
It is true the instant negotiations did not result in a collective-bargaining agreement.
However, it is well settled the Act does not compel agreements but simply imposes
a duty on both sides to enter into discussions with an open and fair mind and a sincere
purpose to find a basis of agreement touching upon wages, hours, and conditions of
employment. Whether a party has bargained in good faith is, of course, a question
of fact. Here, the parties exchanged contract proposals, which were fully discussed,
and Wells characterized the negotiations as being conducted in a friendly manner,
free of arguments, although there were disagreements between the representatives.
Indeed, the only complaint voiced by Wells was the delay between meetings. In view
of the record and- Attorney Bowden's explanations, I do not consider these delays as
being unduly protractive or that they warrant the inference the Company was en-
gaging in stalling tactics to frustrate the negotiations. On all the evidence I am con-
vinced, and find, that in these negotiations the Company fulfilled its statutory
LAKELAND CEMENT COMPANY 1371
obligation to bargain in good faith with the Union as the exclusive representative of
all the employees in the unit involved.
C. Other acts alleged in support of the refusal to bargain and independent violations
of the Act
The complaint alleges that by unilaterally reducing the average number of hours
of work per week, by discharging Davis, the chief steward, and by "its entire course
of conduct subsequent to the Union's designation" the Company violated Section
8(a)(5) of the Act. The complaint further alleges that the Company constructively
discharged five employees by reducing their weekly hours in violation of Section
8(a)(3) and (1). The complaint, as amended, alleges that by reducing the weekly
work hours of 16 named employees for discriminatory reasons the Company violated
Section 8(a)(3) and (1) of the Act. The independent Section 8(a)(1) violations
are bottomed primarily upon the activities of employee Harry Morris, as a super-
visory employee or agent of the Company, during July and August 1959.2 As
there is an intermingling evidence and alleged violations, it may be well to relate the
occurrences in chronological order.
Organization of the Employees
There is little or no evidence concerning the manner in which the Union organized
the employees, although the General Counsel constantly refers to the "organization
campaign."
Davis, who was elected chief steward after the election, was asked if there was an
organizational campaign among the employees sometime in 1959, and he answered
in the affirmative. Davis could not even remember the month he first heard of the
Union.
Charles H. Stafford, union observer at the election, simply stated he learned of
the Union about 1 month before the election.
Jack Branton , a member of the negotiating committee , said nothing more than
that he signed a union card in April 1959, at Lake Parker, about a mile from
the plant.
William E. Mathis, a union organizer, said he became associated with organiza-
tional efforts in the latter part of July or early August 1959. According to Mathis
the Union held two meetings following the election, seemingly on August 23 and 30,
at which time the employees discussed contract proposals and elected officers and
the bargaining committee. Davis was also elected chief steward and Willie Wash-
ington was elected steward for the colored employees.
Following Davis' discharge on September 23, the Union called a strike, which
lasted 2 days, September 24 and 25, and upon termination thereof the Company
reinstated all the strikers.
The Activities and Status of Morris
The General Counsel produced many witnesses to testify concerning the activities
of Morris and to establish that Morris was a supervisory employee as well as an agent
of the Company insofar as these activities were concerned. Typical of this testimony
is that of Branton, a laborer who patched and cleaned pipe and did general work.
At times Branton worked alone and sometimes he worked with Morris. He further
stated that Morris had given orders to him, and other employees, "to do things in
the yard," which were carried out and that Morris was in charge of the plant when
Clarence Trowell, plant superintendent, was on vacation in 1959. The General
Counsel concedes Morris, voted in the Board election, obviously without challenge.
Branton related that sometime prior to the election Morris told him the Company
would not have the Union, even if it won the election, and that the Company "would
cut us down to 40 hours a week." Branton also stated that about July 28, Morris
called him into the shed during working hours and asked him to sign a letter, which
he had prepared, withdrawing from the Union. Morris said the Company could
not give a pay raise until the letter was signed, so Branton signed it. A couple of
weeks after the election Morris again spoke to Branton about withdrawing from the
Union and Branton remarked he was doing all right. Morris said he was going to
talk to the other men and "I am going to sign up to get you fired."
21n his brief the General Counsel also claims Grady Sands to be an agent of the
Company. Sands' testimony adds nothing to the General Counsel's case and it is un-
necessary to discuss it since there is no allegation )concerning his conduct or that he was
a supervisor or agent of the Company.
4372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morris has been employed by the Company for many years as a laborer and dur-
ing the period in question he was paid $1.10 an.hour. As a witness. for the General
Counsel, Morris admitted that about July 28, he spoke to some employees individu-
ally at the plant, during working hours, and had seven of them sign letters which
stated: "N.L.R.B. I want to take my name off the union of Lakeland Cement Co."
After the letters had been signed he placed them in individual envelopes, addressed
to the Regional Office, and then put the envelopes in a drawer of Shelley Gordon's
desk. Morris conceded he wrote the letters and that he could have obtained the
address of the Regional Office from Trowell. However, he was evasive as to who
gave him the form or language used in the letters, other than he "picked it up at the
office. . . There were several in the office."
Trowell stated Morris exercised no supervisory authority at the plant , although
at times he issued routine instructions to the men through Morris, such as where to
stack pipe. Trowell denied having any knowledge of the withdrawal letters or that
Morris ever talked to him on that subject. Trowell stated that in his absence from
the plant, as when he was on vacation in 1959, Shelley Gordon , not Morris, acted
in his place.
Shelley Gordon testified Morris was first employed around 1940, and left his em-
ployment to enter the Armed Forces. Upon his return from the service Morris went
to work for some railroad and was apparently laid off after a short time due to his
lack of seniority. He was then reemployed by the Company sometime in the late
1940's. Gordon said Morris performed the same duties as other production em-
ployees and had no authority to hire or fire, or to effectively recommend such action.
He also denied Morris acted as superintendent in Trowell's absence from the plant.
'Gordon said that one day Morris told him some of the men wanted to resign from
the Union and inquired how they could go about it. Gordon replied if they wanted
to resign they should do so in writing. When Morris asked to whom the letter
should be addressed Gordon stated he presumed it should be sent to the Board's
office in Tampa. At Morris' request Gordon gave him the address of the Regional
Office in Tampa and Morris left. Gordon was away from the plant the next 2 or 3
days and when he returned he found some letters addressed to the Regional Office
on his desk which he put in the mail.
From the above 'evidence I have no difficulty in finding that Morris was simply a
production employee with long service with the Company. In fact the General
Counsel has abandoned the contention that Morris was employed in a supervisory
capacity and now urges that the Company was, and is, responsible for his acts on
the ground he was an agent of the Company. On this point the General Counsel,
in his brief, states: "Morris' status as an agent of the Respondent is unmistakably
shown by his close association with Shelley Gordon . and Clarence Trowell .
during the anti-union campaign . and it is unthinkable that Shelley Gordon did
not actively participate in Harry Morris' activities with full knowledge of Harry
Morris' purpose." The record affords no basis for this argument, other than Gordon
and Trowell were friendly with Morris and I am unaware of any authority which
hold friendship is sufficient to prove agency. It is sufficient to say that the General
Counsel has failed to establish that Morris was an agent of the Company in carrying
out his activities described above under the standards required by Section 2(13) of
the Act.
To bolster his argument that the Company has committed unfair labor practices
the General Counsel claims that it exhibited hostility to organization and conducted
a campaign , against unionization . As already stated there is little or no evidence re-
garding the organization of the employees much less any indication of any antiunion
campaign on the part of the Company. In this respect the General Counsel relies
upon three preelection speeches by Hugh J. Hardy, personnel director, in which he
expressed opposition to organization and some circulars along the same line which
were given to the employees. There is no allegation or contention that the speeches
or circulars were coercive or not fully protected by Section 8(c) of the Act. The
second instance cited by the General Counsel is Gordon's interview of William H.
Johnson, about September 3, 1959, regarding his employment as a truckdriver.
Again , there is no allegation in the complaint covering this incident . In any event,
Johnson stated (his testimony is undenied) that during the interview Gordon asked
what he thought of the Union, and he answered he did not care too much for it.
Gordon commented he did not care too much for the Union either., When asked
if he was easily pushed around, Johnson replied he had too much temper to be
pushed around by anybody. Gordon said Johnson sounded like the kind of a man
he wanted and he was hired . I attach no significance to this conversation either
as background evidence or direct evidence indicating a violation of the Act. Cer-
LAKELAND CEMENT COMPANY 1373
thinly, it cannot be considered as proof that the Company was engaging in any anti-
union campaign or that it constituted unlawful interrogation.
I find the Company did not conduct any antiunion campaign or engage in any
acts or conduct which interfered with, restrained, or coerced the employees in the
exercise of the rights guaranteed them in Section 7.
The Reduction in Work Hours
The General Counsel's case centers principally on the contention that the Com-
pany's unilateral action in reducing work hours was not only unlawful but constituted
a refusal to bargain as well as serving as a foundation for the constructive discharge
of five employees.
Branton summed up his complaint on the subject by stating that he averaged about
54 hours a week before the election, with time and a half for hours in excess of 40;
and that for 6 weeks after the election he made between 33 and 37 hours a week.
At the hearing copies of company payroll records:of some 24 employees were
received•in evidence and upon these records the General Counsel attempts to spell
out a violation of the Act.
First the General Counsel, in his brief, divides the employees into two categories:
(1) "known union adherents" and (2) "known company adherents." The first group
contains the names of 15 men selected by him because they signed union cards, went
on strike, or were interviewed by Morris. The second group, consisting of eight
men, is composed of employees who did not sign union cards, crossed the picket
line, advocated antiunion sentiments, or reported back to management. Manifestly,
the evidence does not justify, this cavalier classification of employees. In addition
to the lack of any worthwhile description of organizational activities, there is no
testimony the employees openly signed cards or ever informed any supervisor of
their having done so. Oddly enough, the seven employees who signed letters of
withdrawal from the Union for Morris, on July 28, are included in the list of union
adherents. It must also be noted that the strike took place on September 24 and 25,
so I fail to se how knowledge of union membership or nonmembership can be
imputed retroactively to the Company as of August 19 or 26, on the basis of the
employees' participation, or refusal to participate, in the strike. As an addendum,
the General Counsel asserts that company knowledge may be inferred on the
grounds the plant is a small one and the "accuracy of the company's intelligence
service." I find no merit whatever in these assertions for smallness of a plant does
not per se, warrant a finding of company knowledge of union activities 3 and there
is simply no testimony to support the latter statement. I find the evidence is in-
sufficient to support a finding of company knowledge of organizational activities,
consequently there is no basis for the General Counsel's classification of employees
into union and company groups.
Despite this finding, I consider it appropriate to discuss the General Counsel's
analyses of the payroll records which reveal some reduction in wages and hours.
The General Counsel commences with the claim that the hours of his union ad-
herents, as reflected in gross earnings, were reduced the week following the election,
namely, the workweek ending August 26. For comparative purposes he uses the
gross earnings of employees for the preceding week, August 19. The records show
that all 15 union adherents and 6 company adherents had lower earnings for the
week of August 26, than in the previous week, while the earnings of 2 men in
the latter group remained constant. Although the union adherents may have
fared a little worse than some of the company adherents, still, three men in the
latter group, Green, Deadwiley, and Gordon, received substantially the same treat-
ment as the union adherents. The General Counsel seeks to explain away this
situation by saying these three men. "may have been reduced inadvertently." 'I at-
tach no significance to this state of facts for the records prove nothing more than
practically all the employees had lower earnings for the week in question.
To give a better picture of how the reduction in hours affected the employees the
General Counsel presents analyses setting forth the average gross weekly pay of
each employee in the two groups covering a 33-week period, January 7 to August 19,
and a 6-week period covering August 26 to September 30, 1959. These analyses
show that the average gross weekly pay of union adherents was lower. in the .6-week
period than in the 33-week period, while six of the company adherents had higher
earnings in the 6-week period than in the previous one and two men, Deadwiley and
See Angwell Curtain Company, Inc., 94 NLRB 675, 676, enfd . 192 F. 2d 899, 903
(C.A. 7) ; Shamrock Foods, Inc., 127 NLRB 622; Diamond Ginger Ale,,•Incorporated,
125 NLRB 1173.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gordon, had lower earnings. However, the inclusion of the week of September 30;
when the union men were on strike for 2 days, explains the high differential in
wages for that week and substantially affects the average weekly earnings in the
brief period of 6 weeks. Certainly, the Company cannot be charged with reducing
the work hours of employees when they are on strike. Thus, as a consequence of the
strike, Branton and Washington worked but 271/2 hours that week and earned
only $27.50. On the other hand Morris and Deadwiley worked 60 and 54 hours,
respectively, and earned $77 and $67.10. Accordingly, in order to obtain a- more
fair and accurate account of the average weekly earnings or hours in the post-
election period, the week of September 30 should be omitted and the week of Sep-
tember 23 should be used as the cutoff date. I, therefore, adopt a 5-week period
instead of the 6-week period used by the General Counsel.
I have examined the payroll records of three employees in each category, whom I
believe to be representative of the employees therein, and these records disclose the
men worked the approximate average weekly hours in periods set forth below
(fractions have been omitted) :
Employee Jan. 7 to Aug. 19 Aug. 26 to Sept. 25
Branton (Union) ---------- 51 hours---------- 41 hours.
Washington (Union) ---------- 49 hours ---------- 40 hours.
Callins (Union) ----------- 46 hours ---------- 40 hours.
Morris (Company)------- 56 hours ---------- 59 hours.
Deadwiley (Company)----__- 49 hours ---------- 41 hours.
Pickren (Company)------- 44 hours 4......... 50 hours.
Plainly, there is a disparity in the hours worked by the so-called union and com-
pany adherents. In brief, counsel for the Company contends there is no evidence
indicating the reductions were discriminatory, that the Company had no fixed over-
time schedule, and that the reductions may have been caused by unfavorable weather
conditions.
The Board has long held that the discriminatory reduction in hours and overtime,
or the elimination of overtime, is proscribed by the Act. However, the cases on
this point consistently show that the reduction in hours occurred in the context of
other unfair labor practices or were part.of a plan to discourage unionization, thus
furnishing ample evidence for a finding of knowledge of union activities and un-
lawful motivation for the action.5 Evidence of this character is wholly lacking in
this case. In -fact I have already found the Company did not engage in any anti-
union campaign or in acts or conduct which interfered with, restrained, or coerced
the employees in the exercise of the rights guaranteed in Section 7. Here the General
Counsel relies upon his analyses of the payroll records and argues the weakness of
the Company's explanations for the disparity in hours. The resolution of the present
issue does -not turn on the weakness of the Company 's reasons , be they economic
or otherwise, actually they are not too material , but on whether the General Counsel
has established that the reduction in hours was motivated by unlawful considerations.
In -my opinion, the evidence does not sustain the General Counsel's contention
either as to company knowledge or unlawful motivation. I so find.
The Reduction in Hours as a Refusal To Bargain
. As appears above, the complaint alleges that by unilaterally reducing hours the
Company thereby failed to bargain in good faith with the Union. It is true the
Company did not consult, with the Union in regard to its nondiscriminatory reduc-
tion in hours, but I seriously question that it was under any statutory obligation to do
so since "the Act does not attempt to regulate the employer's control of his busi-
ness - . so long as he does not thereby attempt to interfere with the right of self-
organization of the employees or to intimidate or coerce them." 6 In any event the
union negotiating committee was fully aware of the hours' condition and had ample
opportunity to bring up the subject for discussion during the course of the bargaining
sessions or in its correspondence with the Company, if it had so desired. Instead
* Pickren shows no hours for the week of June 24, so that week has been eliminated.
e Allure Shoe Corporation, 123 NLRB 717; Homer Gregory Co., Inc., 123 NLRB 1842;
Unifed.Jndustries, Inc., et,al., 121 NLRB 1184; Fleming. Manufacturing Company,. Inc.,
119 NLRB 452, 466; D'Arcy Company, Inc.,*115 NLRB 1320, 1327-1328; Cranston Print
Works Company, 115 NLRB 537, 545-546; Thomason Plywood Corporation, 109 NLRB
'898, 903-904, enfd. 222 F. 2d 364 (C.A. 4) ; Spitzer Motor Sales, Inc., 102 NLRB 437,
439-443, enfd. 211'1'. 2d 235' (CA. 2).
e Appalachian Electric Power Co. v. N.L.R.B., 93 F. 2d 985, 989 (C.A., 4). - '
LAKELAND CEMENT COMPANY 1375
the committee made no mention of this item. Having passed over its opportunity
to negotiate the Union cannot now complain that the Company refused to bargain
on the question of short hours or lack of overtime.? I find the nondiscriminatory
change or reduction in hours is not incompatible with the Company's good-faith
bargaining with the Union as found above.
The Constructive Discharges
The General Counsel contends that at various times following-the election five em-
ployees quit their jobs because of short hours, consequently the Company construc-
tively discharged them. Having found the Company did not unlawfully reduce the
work hours, it cannot be said' that quittings for that reason may be considered as
illegal constructive discharges, and I so find. But irrespective of such a finding the
evidence adduced by the General Counsel on this phase of the case fails to establish
his theory of constructive discharges.
Charlie Stafford, a cement finisher at $1.15 an hour, first heard of organization in
July and attended two or three of the preelection meetings held by the Company.
Obviously, Stafford signed a union card, although not questioned on this subject, for
he acted as union observer at the election. According to Stafford only one person
spoke to him in regard to the Union and that was Morris who stated hours would
be reduced if the Union came in. Stafford said his hours were reduced after the
election, so about September 16 he told Trowell he was quitting because he could
not live on the hours he was getting. Trowell replied he "knew that was coming
around." Although Stafford was getting fewer hours in the post-election period,
he did work 501/4 hours the week of September 9. On cross-examination Stafford
became very evasive as to the circumstances surrounding his quitting and exhibited
a poor memory for dates. In substance Stafford admitted that one-Wednesday he
asked Trowell for a 3-day leave of absence to visit his sister in Alabama, some 450
miles away. He could not recall if this took place on September 15, or even the
month, but Trowell did grant his request and told him to be back the following
Monday because there was pipe to be trimmed and finished. Stafford said he made
the trip to Alabama and returned on Saturday. Stafford admitted that on Satur-
day evening, September 19, he went to Trowell's home (located on plant property)
and informed Trowell he was quitting and turned in his uniforms. Stafford con-
ceded he obtained employment with another company, Templin's, Inc., at $1.60 an
hour. When asked if he went to work for Templin's on September 16, and was
discharged on November 5, he answered, "I wouldn't remember the exact dates."
Stafford was reemployed by the Company on February 24, 1960.
Trowell testified that one Wednesday about the middle of September, Stafford
asked for a leave of absence to visit his sister in Alabama, which he granted but
instructed him to be on the job Monday morning. The following Saturday, Stafford
came to Trowell's home and turned in his uniforms. When Trowell asked why he
was doing so Stafford said he had a better job.
It seems strange that Stafford would go on a 3-day leave of absence when he was
complaining of short hours and I am convinced he was either looking for work, or
working, at Templin's during that interval rather than visiting his sister as he pre-
tended. Stafford was not a truthful witness, so I accept Trowell's testimony con-
cerning the circumstances under which Stafford quit.
Jimmie Carroll, a laborer, signed a union card in April and a letter of withdrawal
on July 28. Carroll was one of the reinstated strikers and said the Company kept
their replacements on the job, so that he was not earning enough money. He made
no complaint to anyone regarding his short hours and about October 15, he quit, with-
out notice, by simply staying away from the plant.
Jim O'Steen was employed as a truckdriver from about February 1958 to
October 20, 1959, when he resigned. While O'Steen did not say so, he obviously
signed a union card, for he was chief steward when he quit. When asked if anyone
talked to him about the Union during the "organizational campaign," he said em-
ployees Bruce Ford and Morris spoke against the Union.
O'Steen testified he quit because the Company cut his hours and failed to follow
its seniority practice in his case. According to O'Steen the Company had five
semitractors and trailers, two of which were diesels. Although O'Steen did not
know how many hours a day the trucks operated, he estimated the diesels made
longer runs, at times 14 hours a day, resulting in more pay for the drivers. In 1959,
O'Steen was number 3 driver in point of service and when the number 2. man quit,
his brother, he should have moved up and. been given the diesel which. his brother had
N.L.R.B. v. Black-Clawson Company, 210 F. 2d 523 (C.A. 6). See, also; •Yaquina
Bay Mills, Inc., 109 NLRB 439.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been driving. Instead, he said Trowell "moved in Mr. Wheeler over me." 8 O'Steen
complained to Trowell that he had been passed over and Trowell explained he needed
an experienced man on the diesel. O'Steen pointed out he had driven a diesel fora
week while his brother was on vacation, but Trowell said that did not matter or words
to that effect. He could not remember whether Trowell informed him that Wheeler
had 5 or 10 years' experience on diesels. O'Steen told Trowell, "You can give the
International [the truck he was driving] to someone else, too." He then went to
the office and signed a letter, dated October 20, stating he was voluntarily resigning,
his job. O'Steen was single and, at his request, did not ordinarily work on Saturdays.
'. Trowell said he did not believe O'Steen was capable of handling a diesel and when
he -told' him he was putting on an experienced man, O'Steen quit.
Robert 'A'. `Bowers testified he signed a union card in April and a letter of with-
drawal`but made no mention of having quit his job and, apparently, was still working
for the'Company.'
. Charlie Guthrie did not testify at the hearing.
The foregoing testimony refutes the idea that the men quit their jobs because of
reduced hours. - I find no evidence to support the allegation of the complaint that
the Company constructively discharged the above-named employees in violation of
Section 8 (a) (3) and (1) of the Act.
The Discharge of Davis
Davis was dicharged September 23, 1959, for unsatisfactory work, in that he
failed to properly inspect certain pipe which resulted in a substantial loss to the
Company. The General Counsel has little to say of Davis' discharge other than it
happened the day after the first bargaining session and that the unsatisfactory work
was performed many months before his termination. As Davis was present at the
bargaining meeting on September 22, there is no doubt the Company was aware of
his union membership at the time of his discharge. The facts regarding Davis' termi-
nation maybe summarized as follows:
In January 1959, the Company received an order from the Brinson-Allen Construc-
tion Company for 54-inch cement pipe, 8 feet long, to be used on a State project at
West Palm Beach. The pipe was to be manufactured according to State specifica-
tions and subject to approval of the State Road Department. In February, the Com-
pany completed the order with the manufacture of about 300 pieces of pipe, which it
sold for about $133 per piece.
Upon receiving the order, Gordon discussed the same with Trowell and since it
contained new and strict specifications they decided to have an inspector on this job
who would be responsible for the manufacture of the pipe in accordance with the
specifications. Davis was selected as the best man for the job. Both Gordon and
Trowell informed Davis of the importance of his duties as inspector and that he was
responsible for the production of round pipe, with no steel showing and no flaws or
imperfections. Gordon stated that during the time the pipe was being manufactured
-he went through the plant daily and asked Davis how the job was progressing and if
the pipe was perfect in every way. Davis informed him the job was coming along
fine.
Davis said he handled all the 54-inch pipe as it came off the vibrator machine,
stood the pipe on end, and inspected it.. According to Davis, Stafford and Oliver,
cement or pipe finishers, checked the inside to see if any steel was showing or if it
needed patching and if such work was necessary either Springfield or Turner went
into the pipe to make the repairs. Davis inspected the pipe for roundness by using
a measuring rod and if the rod would go down into the barrel of the pipe he would,
in line with his instructions, pass it. After the pipe had "set," usually 3 or 4 hours,
Davis would move it from the shed to the yard and stack it. The Company turned
out about 25 pieces of pipe per day. Davis denied he was specifically designated in-
spector for this run of pipe but admitted Gordon and Trowell stated "they wanted me
to help them check and help them keep them round," along with his other duties. He
also admitted that Gordon asked him many times whether the pipe being produced
was round.
In March, Gordon, Davis, and a State inspector inspected about 100 pieces of
the pipe in the company yard and 4 or 5 of the pieces were found to be out of round.
Apparently , the State inspector placed a stamp of approval on the remaining pipes.
8 Wheeler was hired during the week of July 22 , 1959 . Apparently , Wheeler was
driving a gas truck when employed and later put on a diesel. O ' Steen did not give the
approximate date of his failure to move up on the list but seemingly this occurred
around October 20.
LAKELAND CEMENT COMPANY 1377
When Gorden asked why the pipes were out of round Davis said he did the best he
could with the tools and equipment available. Both Gordon and Trowell denied that
Davis, or anyone else, had ever made any complaint about inadequate tools or
equipment.
Davis stated that about 150 sections of the pipe were sent to West Palm Beach,
he could not recall the date, about 168 miles distant, by company truck, 5 sections
per truckload.
On Friday, September 18, Jack Martin, superintendent of the West Palm Beach
job, telephoned the Company to report that the pipe was being rejected. The next
day Gordon and Hardy drove to the job and met with Martin, the State project engi-
neer and his inspector. At that time the State representatives had rejected all the
pipe but upon further inspection they accepted all but 16 pieces, which were out of
round. It is undisputed these 16 sections had been previously accepted in the course
of the March inspection at the company yard.
On Monday, September 22, Gordon told Davis of the rejected pieces and that he
was going to inspect the pipe which was stored in the yard. Gordon, Trowell, and
Davis then inspected one pile and about one-third of the pipe was out of round.
Gorden asked how this pipe was passed and Davis replied he did not know, maybe
someone else could have inspected some of the sections. Davis said he inspected a
second pile of pipe and he knew they were perfect. When the second pile was
inspected they found about one-third of the pipes were also out of round. Gordon
and Davis talked about the situation and in their conversation Gordon told Davis he
had been put on the job to inspect the pipe and he had passed defective sections...
It was then about noon and Davis left. That afternoon Gordon decided to fire Davis
and instructed Trowell to do so.
Davis admitted the above-mentioned inspection was made on September 22, and
that six pieces were out of round. He did not deny his responsibility for passing
the defective pipe, or raise any question in that respect to Gordon or Trowell. After
the inspection Davis attended the bargaining session.
When Davis reported for work the next morning his timecard had been removed
and later Trowel called him to the office. There, Trowell asked Davis if he realized
how much it would cost the Company to replace the pipe he had "messed up" and he
answered that he knew the cost. Trowell stated he would have to replace him and
Davis replied, "Okay." He then inquired of his insurance and Trowell said it had
been taken care of. As he was leaving Davis commented that no one could have
kept the pipe true with the tools he had and Trowell remarked they would try to get
something better if they had to run any more pipe of this kind.
Hardy conceded the Company registered no complaint with the State Road Com-
mission over the rejection of pipe which had been previously approved, because the
chief State inspector advised the Company that the man who had inspected and
approved the pipe had been discharged. Later, all the pipe which had been inspected
earlier and was still in the yard was reinspected by a new team of State inspectors.
From the above testimony I am satisfied Davis was assigned the job of inspecting
this run of pipe and that he was responsible for the passing of defective or imperfect
pieces. The only portion of the evidence which might suggest improper motivation
for his discharge is the period which elapsed from the date of the completion of the
pipe to its rejection on the job, some 6 months, and the fact that his termination'was
effected almost simultaneously with -Davis' appearance at the negotiating meeting.
No explanation was advanced for the 6-month delay, but, whatever the reason, the
delay cannot be attributed to the Company for it was responsible only for the manu-
facture and delivery of the pipe, not its installation.' However, when the Company
was advised the pipe was being rejected for defects it conducted a prompt and fair
investigation of the matter which resulted in Davis' discharge. The fact that these
events occurred at a time when the Union and the Company were bargaining, or
were about to bargain, does not warrant the implication that the Company created
or seized upon this situation to avoid its obligation to bargain with the Union or to
eliminate a union adherent. I find the Company discharged Davis for reasons other
than his union membership or activities in its behalf and, therefore, it did not violate
Section 8(a) (3) and (1) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
597254-61-vol. 130-88 -
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint and amended complaint within the meaning of Section 8(a).(1), (3), and
•(5) of the Act.
• _ [Recommendations omitted from publication.]
Cabinets, Inc., subsidiary of Air Control Products , Inc. and'
Carpenters Local Union 2376, United Brotherhood of Car-
penters & Joiners of America, AFL-CIO. Cases Nos. 12-CA-
1390-1 and 12-CA-1390-2. March 16, 1961
DECISION AND ORDER
On August 11, 1960, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Leedom, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and the brief, and hereby adopts the Trial Examiner 's findings, con-
clusions, and recommendations except as herein modified.
1. The Trial Examiner found that the Respondent violated Section
8(a) (1) of the Act by the conduct of employee Barbara Linkhous
who asked an employee what she thought about the Union and made
various statements which the Trial Examiner deemed to be coercive.
The Trial Examiner based his finding that the Respondent was re-
sponsible for the conduct of Linkhous on a finding that Respondent
"did clothe" Linkhous "with certain authority which could affect the
employment status and accorded her certain privileges not granted to
other employees, .and that her activities were such as clearly to estab-
lish her identification with management in the eyes of the employees,
if not indeed an actual agency."
We do not agree that the Respondent is responsible for Linkhous'
alleged 8 (a)(1) conduct; because we' find that the relationship be-
tween Respondent and Linkhous. was not such as to constitute an
agency relationship., ..
Employee Linkhous' primary duties involved manual labor on the
line in the hardware department. It is true that she had the addi-
130 NLRB No. 138. •• • .. . . .