Lamar Creamery Co.

National Labor Relations Board - Board Decisions

Aug 14, 1964

148 N.L.R.B. 323 (N.L.R.B. 1964)

LAMAR CREAMERY COMPANY 323
Director for Region 5 (Baltimore, Maryland), shall, after being duly signed by an
authorized representative of the Respondent, be posted by it immediately upon re-
ceipt thereof, and be maintained by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by said Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the said Regional Director, in writing, within 20 days from the date
of this Decision and Recommended Order, what steps the Respondent has taken to
comply therewith.is
I further recommend that the complaint be dismissed insofar as it alleges that the
Respondent violated the Act by conduct other than that found to be violative in this
Decision.
"In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interfere with , restrain , or coerce our employees in the exer-
cise of the rights guaranteed in Section 7 of the Act by promising or granting
them economic benefits; or by changing the terms or conditions of their employ-
ment: Provided, however, That nothing in this Recommended Order requires
us to vary or abandon any economic benefit or any term or condition of em-
ployment which has heretofore been established. -
WE'WILL NOT threaten our employees with loss of economic benefits, nor will
we threaten them with other reprisals if they designate or attempt to get Textile
Workers Union of America , AFL-CIO, or any other labor organization, se-
lected as their collective-bargaining representative.
WE WILL NOT interrogate our employees concerning their union activities.
WE WILL NOT in any like or related manner interfere with , restrain, or co-
erce our employees in the exercise of their right to self-organization , to form,
join, or assist any labor organization , to bargain collectively through representa-
tives of their own choosing , to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any
and all such activities.
All our employees are free to become, to remain , or to refrain from becoming or
remaining, members of any labor 'organization of their own choosing.
IMCO CONTAINER COMPANY OF HARRISONBURG , A DIvISION
OF CONSOLIDATED THERMO -PLASTICS COMPANY,
Employer.
Dated ----- _ B ` ''--- --- ------ Y ----- - -- -----------) --------(Title) -----i (Representative
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, .Maryland, Telephone No. 752-8460,
Extension 2100, if they have any questions concerning, this notice or compliance
with its provisions.
Lamar Creamery Company, and Glenn Moss. Case No. 16-CA-
1953. August 14, 1964
,DECISION AND ORDER
On May 11, 1964, Trial Examiner John P: von Rohr issued his De-
cision in the above-entitled proceeding, finding that the Respondent
148 NLRB No. 35.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and was engaging in certain unfair labor practices in
violation of the Act and recommending that Respondent cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Decision. He also found that Respondent had not en-
gaged in certain other alleged unfair practices and recommended dis-
missal of these allegations of the complaint. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
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 Leedom, Fanning, and
Brown].
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 Trial Examiner's Decision and the
exceptions and brief, and hereby adopts the Trial Examiner's find-
ings,l conclusions,2 and recommendations 3
In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's
dismissal of the complaint insofar as it alleged that Respondent discharged Leon Smith
and thereby violated the Act.
Respondent has excepted to the credibility findings made by the Trial Examiner. It Is
the Board' s established policy not to overrule a Trial Examiner 's resolutions as to credi-
bility unless the clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, 545, enfd 188 F. 2d 302
(C A 3). Such a conclusion is not warranted here.
2 Respondent contends that General Manager Mapes did not know who, except for Moss
and Edwards , was present at the meeting at Moss' residence , and that, therefore, it can-
not be charged with knowledge of the concerted activities of the employees . There is un-
denied testimony that employee Moss told Supervisor Hurst which employees were at the
meeting , and this knowledge is attributable to Respondent It is also undisputed that
Hurst related to Mapes his conversation with Moss and that after firing them Mapes
erased the names of all the employees from a blackboard upon which their driving assign-
ments were listed Finally , even assuming Mapes did not know the names of the em-
ployees he fired, it is not necessary to show knowledge of each employee 's participation,
but only that the Employer knew that some of his 'employees were engaged in concerted
activities and that the Employer acted in discharging all to frustrate such activities. See,
e g., Ainoldware, Inc, 129 NLRB 228, 229.
The Respondent contends that the driver employees were not engaged in a protected
activity and that their discharge was justified because the drivers threatened to strike
unless their wage demands were met and hence there was a threat of imminent danger of
economic loss to Respondent in that the milk loaded in the trucks would be ruined in the
event of a strike. We find no merit in this contention as the record shows that the trucks
were so equipped that no milk could possibly be ruined
3 Respondent contends that it is not shown on the record that the Board has jurisdic-
tion in this case, alleging that its sales across State lines , admittedly in excess of $50,000,
are retail in character and therefore do not meet the nonretall outflow standard. In
asserting jurisdiction in this case we do not rely on the nonretail outflow standard. Re-
spondent has admitted it has a gross volume of retail and nonretail sales in excess of
$500,000, which is within the standards for the discretionary assertion of jurisdiction
(Joseph Crowden and Thomas Crowden , a Partnership, d/b/a Indiana Bottled Gas Com-
pany, 128 NLRB 1441; Carolina Supplies and Cement Co., 122 NLRB 88), and legal
jurisdiction is established by its volume of sales across State lines (International Long-
shoremen & Warehousemen's Union, and Local No. 13 , etc. (Catalina Island Sightseeing
Lines ), 124 NLRB 813, 814-815). Accordingly , we find that it will effectuate the pur-
poses of the Act to assert jurisdiction in this case. -
LAMAR CREAMERY COMPANY 325
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its offi-
cers, agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed, the General Counsel for the
National Labor Relations Board, for the Regional Director for Region 16 (Fort
Worth, Texas), issued a complaint-on December 20, 1963, against Lamar Creamery
Company, herein called the Respondent or the Company, alleging that it had en-
gaged in certain unfair labor practices affecting commerce within the meaning of
Section 8(a) (1) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act. The Respondent's answer denies the allegations of unlawful
conduct alleged in the complaint.
Pursuant to notice, a hearing was held in Paris, Texas, on February 10, 1964, be-
fore Trial Examiner John P. von Rohr. All parties were represented by counsel and
were afforded full opportunity to adduce evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs were filed by the General Counsel and the Re-
spondent and they have been carefully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Lamar Creamery Company is a Texas corporation with its plant and place of busi-
ness located at Paris, Texas, where it is engaged in the business of milk processing
During the 12 months preceding issuance of the complaint herein, the Respondent
sold products valued in excess of $50,000 directly to customers located outside the
State of Texas. During this same period the Respondent sold and distributed prod-
ucts, the gross value of which exceeded $500,000. I find that the Respondent is and
has been engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.'
II. THE UNFAIR LABOR PRACTICES
A. The facts
The issue in this case, the resolution of which is largely a credibility problem, is
whether the Respondent discharged certain of its employee truckdrivers as a result
of their concerted activities.
On October 21, 1963, Respondent's truckdrivers received written notification to
the effect that their method of pay was being changed as of October 31 from an
hourly basis to a mileage basis. According to the truckdrivers, this change would
result in a substantial reduction in their take-home pay. After conferring with each
other during the next few days, the drivers agreed to and did meet at the home of
driver Glenn Moss on the evening of October 26, 1963. In addition to Moss, the
1 The Respondent asserts that it is not engaged in commerce within the meaning of the
Act because none of its wholesale business goes outside the State of Texas In this con-
nection, the Respondent states in its brief that the only products sold outside the State of
Texas go to retail customers at Idabel , Oklahoma However, the facts referred to in Re-
spondent 's briefs are not in the record nor ti,as this matter litigated at the hearing The
only jurisdictional facts In the record are those reflected above , the same having been
alleged In the complaint and admitted by Respondent ' s answer Accordingly , since the
Respondent did not litigate the facts alleged In its brief , I reject Respondent ' s contention
that It is not engaged in commerce within the meaning of the Act. Moreover, I note that
the Board has previously asserted jurisdiction over the Respondent See Lamar Creamery
Company, 115 NLRB 1113
326 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees present were Harmon D. Gregg, J. D. Miller , Johnnie Grey, Bobby
Upchurch, Joe Mathis, Horace Vancill, Richard Eatherly, Bill Mitchell, Charles
Ray Jones , and E. B. Edwards . Having decided first that a majority vote should
rule, the drivers finally decided upon a wage proposal of their own , viz: $0.06 per
mile traveled ; $ 1.25 per hour when the trucks were broken down en route; $1 per
stop when loading or unloading ; and reimbursement for hotel bills while on the
road. The group also decided that the Respondent should be notified of their de-
mands that same evening , and further, that Respondent be told that if such demands
were not granted immediately , the trucks would not roll in the morning. Glenn
Moss, who was elected as spokesman , telephoned Edgar Hurst, Respondent 's trans-
portation supervisor, at the latter's home about 10 p.m. from his kitchen, with truck-
driver Harmon D. Gregg present when he made the call. Moss told Hurst about
the meeting at his home and proceeded to tell him of the demands the truckdrivers
had thus decided upon. Moss concluded by requesting Hurst to call the Respond-
ent's general manager, J. E. Mapes, so that he be notified and that a decision be
forthcoming . Hurst promptly called Mapes, apprised him in full as to what had
happened, and met Mapes at the plant about 20 minutes later. About 10:20 p.m.,
Mapes called Moss from the plant. The first part of the ensuing conversation is
not in dispute. Moss told Mapes much the same as he had told Hurst, i.e., after
stating that the drivers thought Respondent's new pay schedule was unfair, he pre-
sented instead the pay proposal of the drivers who were present at his home. It is
undisputed that Moss put the drivers' wage proposal in the form of a demand and
that he told Mapes that the trucks would not roll the following morning unless this
demand was met. There here follows a conflict in the testimony as to remainder of
this conversation. The version as testified to by Moss is as follows:
Mr. Mapes said that we shown him precious damn little respect calling at that
hour of the night, and he asked, "Did you know that you are fired," and I said,
"Well, I suppose," and he said, "Tell everyone at the meeting they're fired, every
god damn one of them. And is E. B. Edwards there?" and I said, "Yes, sir,"
and he said, "Tell him that he is fired, too, and that I will mail the checks," and
I said, "Friday?" and he said, "You'll get it." . he told me not to set foot on
company property, and told me to tell the rest of them to not set foot on com-
pany property, and asked me, "Do you understand that?" And to "Tell every-
one of them." And I said, "Yes, sir," and he said, "Do you understand that?"
And I said, "Yes, sir."
As previously noted, driver Harmon Gregg was present in the kitchen when Moss
first called Hurst . He was also in the kitchen when Mapes called Moss and was
present when this telephone conversation took place . Gregg testified that he stood
about 2 or 3 feet from the telephone , that at the latter part of the conversation the
party at the other end raised his voice ,2 and that he overheard some of the remarks
made by that party as they came through the receiver. Concerning this Gregg
testified , "But I did hear Mr. Mapes, or whoever was on the phone . . . I'll put it
that way-whoever was on the phone asked Mr.'Moss did he know he was fired, and
that `every god damn one' of us that was at the meeting was fired."
Mapes' version of the disputed part of the above conversation is as follows:
I talked to him briefly about the rate, and told him , trying to substantiate that
our rate wasn 't too low, that it was in line with other companies , what other
companies were paying in the community . And he says , "Well, Mr. Mapes, all
I can tell you is that if you don't give us this rate of pay we won't work for
you." I says, "Is this final?" and he says, "It is. It certainly is final ." He says,
"Furthermore , the trucks won't run unless you agree to pay that tonight," and
I said, "Glenn , they will run," and he said , "We'll see that they don't," and I
says, "By God , they will run. If you damage any of our equipment I'll fire any
one of you . And if you are not going to drive the trucks don't come on our
community lot."
As between the two witnesses, I credit the testimony of Moss over that of Mapes.
From my observation of Moss on the stand , he impressed me as an honest and in-
telligent witness . His unequivocal testimony was such that I do not believe he in
any sense misunderstood what Mapes had to say, nor do I believe his testimony to
2 Moss testified that Mapes' voice "grew louder and angrier as we proceeded."
LAMAR CREAMERY COMPANY 327
have been fabricated .3 I was likewise impressed with witness Gregg, who corrobo-
rated Moss to the extent that his testimony reveals him to have heard Mapes say
over the telephone that all of the drivers present at the meeting were fired. As to
Mapes, I am impelled to conclude that his testimony to the effect that the drivers
would be discharged if they damaged any of Respondent's equipment came at best
as an afterthought and I do not credit his testimony in this regard .4
Moss credibly testified that after his conversation with Mapes he returned to the
living room and told the employees what Mapes had said. Thus, Moss testified, "[I]
told the boys that they had been fired, and told Mr. Edwards that he had been fired
separately, and about myself . . I told them that they were not to set foot on com-
pany property or the motor pool."
Harmon Gregg testified that following the Mapes telephone call and before dis-
persing the employees decided to assemble at the city parking lot across the street
from Respondent's plant on the following morning "to show Mr. Mapes that we
were still willing to work." It is undisputed that seven or eight of the drivers who
attended the meeting did appear on the parking lot about 3:30 the next morning, a
Sunday.5 Mapes acknowledged observing the employees as they were so assembled,
but the record is clear that neither side broached the other about returning to works
The trucks were taken out that morning by supervisory personnel and several new
hires.
B. Conclusions concerning the Section 8(a) (1) violation as to the truckdrivers
attending the October 25 meeting
Although it is Respondent's contention that the truckdrivers attending the Octo-
ber 26 meeting were not in fact discharged by Mapes, this factual matter has already
been decided adversely to the Respondent. However sympathetic one might be
toward the Respondent in view of the drivers' short-noticed ultimatum, this did not
give the Respondent the right to discharge these employees for taking this action.
Respondent, of course, was not required to accede to the drivers' demands. Un-
doubtedly the drivers threatened refusal to work was based upon economic considera-
tions and Respondent would have been within its rights in replacing them if they
went out on strike. But it is well settled that a discharge of strikers prior to the
time their jobs have been filled by permanent replacements constitutes an unfair
labor practice.? Accordingly, I find that by discharging the employees in question
for engaging in concerted activities within the meaning of Section 7 of the Act, the
Respondent thereby engaged in unfair labor practices within the meaning of Section
3 While my credibility findings here are based principally upon my observation of the
demeanor of the witnesses, I am also persuaded that Moss' testimony is the most plausible.
As previously noted, less than an hour earlier the drivers had voted, not to work if their
demands were not met that evening. Such being the case, and with the additional factor
of Gregg being present when Mapes called Moss, I deem it highly unlikely that Moss
would have told the drivers, as noted below, a made-up story that they were discharged.
I Hurst testified that he entered the room while Mapes was speaking to Moss on the
telephone. Hurst testified that he heard Mapes ask Moss "if that was their final word"
and also that "I heard Mapes say something about that if he wasn't going to work to
stay off the motor pool, to- stay away from the motor pool if he wasn't going to drive."
Hurst's testimony is silent with respect to Mapes use of the word "discharge" in any
context
5 The trucks were scheduled to leave at 4 a m.
a Mapes testified that on the following morning, Monday, he received a telephone call
from the Texas Employment Commission notifying him that the drivers had filed for un-
employment compensation and that they stated on their applications "that they had been
fired."
There is also testimony in the record showing that one Archie Boatright, an official of
the local Boilermakers Union and an employee of another company, interjected himself in
this matter by voluntarily calling Mapes on Sunday in an effort to settle the dispute
There is a conflict in the testimony between Boatright and Mapes concerning their con-
versation with each other However, I do not deem it necessary to resolve this conflict
or to set forth their testimony since whatever version is believed would add nothing to
the case and is of no probative value in deciding the issue herein
7 Cowles Publishing Company, 106 NLRB 801, enfd. 214 F. 2d 708 (C.A 9) ; cert.
denied 348 U S. 876.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a) (1) of the Act .8 In view of this violation, I shall follow established Board
precedent and recommend the customary remedy applied by the Board in situations
involving violations of Section 8(a)(3) of the Act.9
C. The alleged violation as to employee Leon Smith
The complaint alleges that Respondent unlawfully discharged Leon Smith within
the meaning of Section 8(a)(1) of the Act Smith, a truckdriver, was out on a run
during the evening of October 26 and did not attend the meeting of employees at
Moss' home on that date. Smith testified that when he returned to the plant on the
morning of October 27 he observed that the names of all the drivers were erased
from the blackboard. He thereupon joined the group of employees who were as-
sembled on the parking lot across the street and was told by Harmon Gregg of the
Mapes telephone conversation with Moss on the night before, including the fact that
during this conversation Mapes told Moss that all those present were fired.10 It is
undisputed that Smith thereupon remained with the group of employees and that he
made no further effort to return to work.
I fail to see where the General Counsel has established a violation with respect to
employee Smith. As heretofore found, Mapes told Moss that all those present at
the meeting were discharged. Since Smith was not one of those present at this
meeting and since he was never individually told by any Respondent official that he
was discharged, I find and conclude that Respondent did not commit an unfair labor
practice with respect to Smith and I shall recommend that this allegation of the
complaint be dismissed.
D. The supervisory issue concerning E. B. Edwards
It is the Respondent's position that E. B. Edwards is a supervisor within the
meaning of the Act. Edwards, employed by the Respondent since June 1958, was
assigned to the motor pool on April 28, 1963. At that time he was paid a monthly
salary of $375. However, due to a regulation of the wage and hour law, Edwards
was placed on an hourly wage of $1.25, this being the same wage rate as the other
drivers in the motor pool. According to Transportation Supervisor Hurst, Edwards
was told by him, at the time of his transfer to the motor pool, that he was a
foreman or supervisor as of then. I do not credit this testimony of Hurst. To the
contrary, Edwards credibly testified that at that time Hurst told him he was a relief
driver, and further, that a week or two later he was introduced by Hurst to Mapes
as a relief driver.ll Nor do I credit Hurst's testimony that Edwards had authority
to hire, discharge, and discipline employees. Edwards credibly testified that he
was never advised of any such supervisory authority and Hurst could not cite a
single instance where Edwards exercised any such authority. The fact of the matter
is that Edwards, as he credibly testified, spends approximately 90 percent of his
time as a long-distance driver.12 The remainder of the time is spent as Hurst's
assistant, performing whatever tasks may thus be assigned. There are occasions
when Edwards acts as Hurst's replacement when the latter is absent from the plant.
This may happen on occasional weekends or when Hurst is away on vacation.
However, the evidence reveals that Edwards' duties in these instances are ministerial
in nature and do not require the exercise of independent judgment. Thus, not only
do most of the drivers have regular runs, but Edwards merely copies on the black-
board the assignment of runs which are previously furnished to him by Hurst in
writing As to the last occasion when Hurst was out for 9 days on vacation,
Edwards testified that "All of the iuns were given to me on a piece of paper, with
the driver's name, the truck number, the trailer number, and the destination for
the full 9 days that Mr. Hurst was gone, and I posted them on the board according
to what was on the piece of paper."
s That the activities of the drivers at Moss' home on the evening of October 26 were
concerted activities within the meaning of Section 7 is too clear to require further
elaboration
6 Cowles Publishing Company, supra.
"The credited testimony of Smith and Gregg
11 Mapes came with the Respondent on April 22, 1963. Edwards testified that this intro-
duction occurred about a week or two thereafter
12 This included the taking of extra runs and the relief of drivers who were out sick or
on vacation He also went out to handle problems when trucks broke down on the road
LAMAR CREAMERY COMPANY 329
In view of the foregoing, I find and conclude that Edwards-was not a supervisor
within the meaning of Section 2(11) of the Act. Whatever direction he may have
exercised as to the other employees was of a sporadic and routine nature and did
not change his status as an employee.13
III. THE EFFECT. OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices
violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act. -
Having found that Respondent has discriminated with respect to the hire and
tenure of employment of Glenn Moss, Joe Mathis, Richard Eatherly, J. D. Miller,
Billy Mitchell, Charles Ray Jones, E. B. Edwards, Horace Vancill, and Harmon D.
Gregg, I will recommend that Respondent offer them immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of earn-
ings they may have suffered as a result of their unlawful discharges, by payment to
each of them a sum of money equal to that which they normally would have earned
as wages from the date of their discharge to the date of Respondents offer of rein-
statement, less the net earnings of each during such period, with backpay and
interest thereon to be computed in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716. Having in like manner discriminated against Johnnie Grey and Bobby
Upchurch, it is recommended that they be made whole for any loss of pay from the
date of their discharge, until the date of their reinstatement, in the manner aforesaid.14
It is also recommended in order to satisfy the remedial objectives of the Act,
that Respondent be ordered to cease and desist from in any other manner infringing
upon its employees' rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS 'OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
.Section 2(6) and (7) of the Act.
2. By interfering with, restraining, and coercing the employees named in the sec-
tion entitled "The Remedy," in the exercise of the rights guaranteed by Section 7 of
the Act, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
3 The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not committed any unfair labor practices with respect to
the hire and tenure of employment of Leon Smith. -
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and upon the
entire record in this case, I recommend that Respondent, Lamar Creamery Company,
its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of the
right to engage in concerted activities for mutual aid or protection.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form, join, or assist labor organiza-
13 Overnite Transportation Company, 129 NLRB 261, 281., Eastern Camera and Photo
Corp. 140 NLRB 569, 571 -
11 The record reflects that Upchurch and Grey were reinstated on October 31 and
November 5, 1963, respectively ,
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities. • - '
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer to the following employees immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority or
other rights and privileges, and make them whole for_ any loss of earnings they may
have suffered as a result of their discharge , in the - manner set forth in the section of
this Decision entitled "The Remedy": Glenn Moss, Joe Mathis, Richard Eatherly,
J.`D. Miller, Billy Mitchell, Charles Ray Jones, E. B. Edwards, Horace Vancill, and
Harmon D. Gregg.
(b) Make Johnnie Grey and Bobby Upchurch whole for any loss of earnings
suffered in the manner set forth herein in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine the
amount due as backpay. -
(d) Post at its plant in Paris, Texas, copies of the attached notice marked "Ap-
pendix A." 15 Copies of said notice, to be furnished by the Regional Director for
Region 16, shall, after being duly signed by an authorized representative of the Re-
spondent, be posted by it immediately upon receipt, thereof, and be maintained by it
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 said Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the said Regional Director , in writing , within 20 days from the date of
this Decision and Recommended Order, what steps the Respondent has taken to
comply therewith.16
I further recommend that the complaint be dismissed insofar as it alleges violations
of the Act not specifically found herein.
15 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order " shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and
Order "
11 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discharge employees for exercising the right guaranteed in
Section 7 of the Act to engage in concerted activities for their mutual aid and
protection.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form , join, or assist
labor organizations to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all of such
activities.
WE WILL offer to the following employees immediate and full reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges and make them whole for any loss of
earnings suffered as a result of their discharge : Glenn Moss, Joe Mathis , Richard
Eatherly, J. D. Miller, Billy Mitchell, Charles Ray Jones, E. B. Edwards, Harmon
D. Gregg, and Horace Vancill.
WE WILL make Johnnie Grey and Bobby Upchurch whole for any loss of
pay suffered as a result of the discrimination against them.
LOCAL 333, UNITED MARINE DIVISION, N.M.U. 331
All our employees are free to become , remain , or refrain from becoming or re-
maining members of any labor organization.
LAMAR CREAMERY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-In the event any of the above -named employees are prseently serving in the
Armed Forces of the United States we will notify them of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended , after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth , Texas, Telephone No.
Edison 5-4211 , Extension 2131 , if they have any question concerning this notice or
compliance with its provisions.
Local 333, United Marine Division , National Maritime Union,
AFL-CIO and Sea-Land Service, Inc. Case No. 24-CC-90. Au-
gust 17, 1964
DECISION AND ORDER
On April 29, 1964, Trial Examiner Paul Bisgyer issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the 'attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
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 [Chairman McCulloch and Members
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Local
i There is no contention that the masters , mates, and engineers employed by Lighterage,
whom the Respondent sought to represent , are not employees as defined in the Act.
148 NLRB No. 33.