Magnet Cove Barium Corp.

National Labor Relations Board - Board Decisions

Jan 2, 1958

119 N.L.R.B. 1202 (N.L.R.B. 1958)

1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the job, it was such an act of disloyalty that in my opinion it would subvert rather
than effectuate the policies of the Act to require his reinstatement?
The unfair labor practices committed by the Respondent are such as to indicate
a general and intense hostility toward organizational activities among her employees,
and to make effective the interdependent guarantees of Section 7 of the Act, thereby
minimizing industrial strife which burdens and obstructs commerce, and thus effectu-
ate the policies of the Act, it will be recommended that the Respondent cease and
desist from infringing in any manner upon rights guaranteed employees in Section 7
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. International Brotherhood of Electrical Workers, Local Union No. 1823,
AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discharging its employees Hubert Johnson, Carl E. Bengtson, and Myron
A. Haug because of their union activities , thus discriminating in regard to their hire
and tenure of employment and thereby discouraging membership in the above-named
labor organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and (1) of the Act.
3. By interrogating its employees concerning their union affiliation and desire
for union representation ; by threatening to cease operations if its employees became
organized ; by threatening its employees with discharge if they engaged in union
affiliation or activities ; and thereby interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. 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.]
7 When questioned whether he had discussed with Jackson the matter of engaging in
the burglar alarm business on his own time while he was in her employ, Johnson testified,
"No, I didn't have any reason to I mean she doesn't hold a monopoly on it."
Magnet Cove Barium Corporation and International Brother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers,
Local No. 393, and International Union of Operating Engineers,
Local No. 450. Case No. 16-CA-986. January 0, 1958
DECISION AND ORDER
On August 9, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that Respondent had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed insofar as it
alleges violation of Section 8 (a) (3) of the Act. Thereafter, Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief. The General Counsel filed no exceptions.
119 NLRB No. 139.
MAGNET COVE BARIUM CORPORATION 1203
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Bean].
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
Intermediate Report, 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
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Magnet Cove Barium Corpora-
tion , Zavalla, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Threatening its employees that it could discharge them in
connection with protected union activities.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its plant in Zavalla, Texas, copies of the notice attached
to the Intermediate Report marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by the Company's representa-
tive, be posted by the Company immediately upon receipt thereof,
and be maintained by it for sixty (60) consecutive days. thereafter,
in conspicuous places, including all places where notices to its em-
ployees are customarily posted. Reasonable steps shall be taken
by the Company to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the receipt of this Order, what
steps have been taken to comply herewith.
1 Motions of the General Counsel for summary judgment , or, in the alternative to strike
Respondent 's untimely answer were denied by the Trial Examiner . We find it unnecessary
to decide whether these rulings were correct. As the Trial Examiner permitted evidence
on the substantive issues to be presented at the hearing , we base our decision upon the
record. Liquid Carbonic Corporation , 115 NLRB 795, 798.
2 This notice is amended by substituting for the words , "The Recommendations of a
Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by 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."
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as amended, alleges that the Company has violated Section
8 (a) (3) of the National Labor Relations Act, as amended, 61 Stat. 136, by dis-
charging Robert M. Weaver, Charlie E. Weaver, Jimmy Harris, Venis Evans,
Herman Lofton, Vernon Roebuck, I. D. Powell, and Calvin Kitchens on or about
April 5, 1957, and refusing or failing to reinstate them except Evans, who was
reinstated on May 13, 195), all because they joined or assisted the Union (this term
refers to the Charging Unions jointly) or engaged in other concerted activities; and
Section 8 (a) (1) by said alleged acts and by the statements of its superintendent
to employees in which he threatened and warned that he could or would defeat the
Union and discharge or lay off employees for engaging in concerted activities. The
answer alleges that the eight were laid off for economic reasons, denies discrimina-
tion, and alleges that its superintendent declared that groupings and discussions by
employees were interfering with the work flow and that such groupings should not
be permitted. A hearing was held before the duly designated Trial Examiner at
Lufkin, Texas, on June 11 through 13, 1957.
Prior to the hearing, the General Counsel moved for summary judgment on the
Company's failure to file an answer. The motion was set for argument at the open-
ing of the hearing. Admitting a technical default, the Company argued that it
had not ignored either the Board or the General Counsel; before the complaint was
issued, it had advised the Regional Director of its denials of the unfair labor prac-
tice charges; and it had overlooked filing of its answer.
In support of his motion, the General Counsel cited the Modern Optics I and
Liquid Carbonic 2 cases. I pointed out that the former case was one of default in
both answer and appearance, and that the right to award judgment in such a situa-
tion had been recognized in the second Modern Optics case.3 It was further pointed
out that in the Liquid Carbonic case the Board declared it has power to determine the
proceeding on a motion for summary judgment after failure to file an answer, but
continued to consider the case on its merits since, as it declared, the case had actually
been heard. I noted further that the default here does not appear to have been
willful.4 The motion for summary judgment was denied and the answer received.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that the Company is an Arkansas corporation all of
whose capital stock is owned by Dresser Industries, Inc., a Delaware corporation
with principal office and place of business in Dallas, Texas; that the Company is
engaged at Zavalla, Texas, ^in the manufacture, sale, and distribution of drilling mud
and related products; and that during the 12-month period prior to May 16, 1957,
it sold and shipped from its Zavalla plant to points outside the State of Texas prod-
ucts consisting principally of drilling mud valued at more than $50,000. I find that
the Company is engaged in commerce within the meaning of the Act.
It was admitted and I find that the respective unions are severally labor organiza-
tions within the meaning of the Act. '
It. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8 (a) (1)
Immediately prior to April 5, 1957, the Company employed 28 production and
maintenance men at the Zavalla plant. Powell testified that the men had first begun
to discuss unionization about May 1956, but were afraid to talk about it lest they
lose their jobs. About the end of the year, the men gained confidence, and every-
body started to talk about it. A meeting was held on March 30, 1957. It was vari-
'Modern Optics, Inc., Board Order September IT, 1952, 30 LRR 1442 (not reported in
printed volumes of Board Decisions and Orders).
2 Liquid Carbonic Corporation, 116 NLRB 795, 790-798.
3 Modern Optics, Inc., Intermediate Report 60, April 30, 1953; Board Order June 18,
1953, 32 LRR 1336 (not reported in Board Decisions and Orders).
4 The General Counsel stated at the hearing that he was then filing an appeal to the
Board from the denial of his motion. Presumably the denial has not yet been reversed
I have no knowledge of the terms of the appeal or of any action thereon by the Board.
MAGNET COVE BARIUM CORPORATION 1205
ously testified that 22 to 26 employees attended ; all signed union authorization cards.
On April 2, the Union (acting jointly) filed with the Board a petition for certifica-
tion, which is still pending.
Powell and Evans testified that a few days before the layoff on April 5, apparently
at noon on Saturday, March 30, while they were in the cafe at the Zavalla bus sta-
tion, they overheard Donovan, the plant manager, tell Carpenter, a shop attendant
in the plant, that he could run 8 or 10 of the men off, kill their vote, and keep the
Union down. (Evans' account was more picturesque and referred to running off
2 to 5 men.) Donovan testified that on the evening before he had heard rumors
of the organization drive. Although Donovan impressed me as honest and generally
truthful, I do not credit his denial that he ever spoke to Carpenter in the cafe. He
did not recall being in the cafe with Carpenter , but could not say that he never dis-
cussed the Union with Carpenter outside the plant . The latter did not recall being in
the bus station with Donovan, but admitted that he may have been. He denied that
Donovan ever made the alleged remark to him. I find that the remark was made by
Donovan and that, made within the hearing of Powell and Evans, it tended to interfere
with employees' concerted activities even if not said to them or intended for their hear-
ing. Aside from the fact that the remark was overheard, it was made to Carpenter,
himself a rank-and-file employee. It may be unnecessary to point out that here we
consider the effect on employees, regardless of Donovan's intent, of a statement by
one who had the power to put into effect the acts described. Thus to connect, by
one who has the power to discharge, a reference to possible discharge with mention
of concerted activities is to threaten and tends to interfere with such activities .5
(Whether it was at the same or another time, Powell also testified that Donovan said
something about there being less time than there would be if the men left it
"un-union." Whatever Powell had in mind, his answer was not clarified, and I find
no violation there. Further, this does not appear to be one of the statements alleged
to have been violative.)
Cowart, a leadman or pusher , testified that at about 9 a. m. on April 2, Donovan
came to his house and Cowart got into Donovan's automobile, where Donovan said
that he could fire 5 or 6 of the men and kill the Union's percentage, but he wouldn't;
that he could fire Cowart if he wanted to for participating in the March 30 meeting;
that the Company could shut the plant down and operate elsewhere; and that he
knew that the new men brought this on and he should have fired them 6 months ago.
(The men who had been employed at least 6 months but were still "new" were not
identified. Of the 6 who were laid off and testified, C. E. Weaver, R. M. Weaver,
and Evans had been employed 2 years or more.) The latter two remarks are not
alleged as violative. Powell testified that a day or two before April 5, as he
approached Cowart's house, the latter and Donovan being in Donovan's automobile
in front of the house, he heard Donovan say to Cowart that he could lay off 8 or 10
of the men and keep the Union down . Donovan testified that he was speaking
to Cowart about the men collecting in groups. But he did say that he could lay
off 7 or 8 men and "quiet this thing down "-and he frankly admitted that, as
Cowart had testified, he had the Union in mind. I do not rely on or credit Powell's
statement that, about one-half a car length away, he overheard Donovan's remark.
(Donovan appeared to be soft spoken; it does not appear that he was otherwise
when he spoke to Cowart in the automobile.) But the other testimony is sufficient,
and Cowart is himself an employee within the meaning of the Act. ( It was agreed
that Cowart is not a supervisor. He joined in union activities, considered himself
eligible for union membership , and did join.) These warnings or notices by
Donovan , as alleged, that he could commit unlawful acts but did not want to are
threats even though he said that he would not do those things. The tendency of such
statements to interfere with , restrain , and coerce employees in the exercise of their
rights to engage in concerted activities is clear.
Donovan also said , according to Cowart , that he had called the Company's office
in Houston and they had told him to stay out of it. Donovan told Cowart that
6 Cf. N. L. R. B. v. W. C. Nabors Company, 196 F. 2d 272, 276 (C. A. 5) : "When
statements such as these are made by one who is a part of the company management, and
who had the power to change prophecies into realities , such statements , whether couched
in language of probability or certainty , tend to impede and coerce employees in their right
of self-organization , and therefore constitute unfair labor practices."
In the instant case, for prophecies was substituted a verbal muscle -flexing. If it be
claimed that Donovan, as plant manager , was merely declaring his rights under the law,
the answer is that he was violating the law : he is not permitted to connect discharges
with keeping the Union down , nor to discharge for participation in a union meeting.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would not fight it ; if the men wanted it, he would let them have it , but he did
not want them to get into something they did not know about. His statement to
Cowart that he would let the men have the Union if they wanted it does not
remove the element of interference. The statement that he did not want them
to get into something they did not know about, even if well intended , indicates a
zeal which was certainly misapplied as evidenced by his interference.
After Donovan left, Cowart allegedly said to Powell that he did not think
Donovan would like it being union, but that they would have a good thing if they
could get it . Aside from the fact that this is not alleged , this statement by Cowart
of his opinion of Donovan's attitude , without proof that Cowart spoke for the
Company, is no violation.
Charlie Weaver testified that a few days before the layoffs , he overheard Donovan
say to a lady in the bus station restaurant that he "should go down and lay off
the whole bunch working down there then ." Whether or not intended for Weaver's
ears, the alleged remark does not appear to refer to union activities , nor has it been
connected with any beyond the following testimony:
Q. (By Mr. Latimer.) What did you think Mr. Donovan meant when you
heard that remark?-A. I figured he was figuring-he said he was going down
there and run them off.
Q. Why?-A. Well, I figured he meant on account of the union.
This is hardly impressive. It will be recalled that Charlie Weaver, testifying earlier
to what he had heard , had stated that Donovan had said that he should go down
there and lay them off, not that he was going down to do it. The later testimony ap-
peared to be dragged out of Weaver; I do not rely on it. In this connection Donovan
could testify only that he did not recall any conversation with a lady in the bus
station restaurant . (It is difficult to connect testimony concerning each statement
with an allegation in the complaint . This item appears not to have been alleged.)
Testimony was received concerning a statement by Widner, another rank-and-file
employee, although it was hearsay and there was no evidence of Widner's authority
to speak for the Company. After the General Counsel's attention was called to
the hearsay nature of this testimony , and in the absence of proof of authority , further
similar testimony was barred . I place no reliance on the testimony which was
thus received . 6 It may further be noted that the two witnesses who testified in this
connection contradicted each other in placing the conversation at both Powell's
and Widner 's home. Nor is the matter alleged in the complaint.
B. The alleged violation of Section 8 (a) (3)
While the complaint alleges that the employees were discharged , the witnesses
referred to layoffs and testified that Chambers , the assistant plant manager, spoke
of laying them off rather than discharging them. Chambers testified that he told
them it might be a week or two; he did not know just how long it would be before
they would be recalled, but that they probably would be called back. But whether
permanent or temporary, it was agreed that there is no fatal variance between the
allegation of discharge and the testimony of layoff; the issue is whether the ter-
minations of employment on April 5 , 1957, were discriminatory.
Without consideration of the type of work performed by each employee, it was
agreed that the 8 laid off were selected from a total of 28 from whom those laid off
might have been taken . It appears further that all of those who remained at work
openly supported the Union. These eight were members of the sacking or bagger
crews. (There had been 1 crew on each of 2 shifts.) A sacker crew consists of
some eight men, generally classified as laborers . One is the sacker operator ; Powell
held this job at $1.35 per hour, which was 5 cents higher than the rate paid the
others regularly in the crew . Two men pulled material off the belt , 2 drove the
buggy, and 3, sometimes 4, stacked on the car . Of those laid off, Lofton and Roe-
buck had been employed approximately half a month and worked on the night shift;
Harris, Kitchens, and Powell also worked on the night shift; the Weavers and Evans
worked on the day shift. The members of each crew, except for the sacker operator,
rotate among themselves on the various jobs. Thus with 8 laid off, those who
remained could and did readily work together as I crew on the day shift. (C. E.
Weaver was a member of the crew although he testified that he "worked under the
ON. L. R. B. v. Amalgamated Meat Cutters , Local No. 127 (Armour Creameries), 202
F. 2d 671, 672-673 (C. A. 9), cited in American Rubber Products Corp., 106 NLRB
73, 75; Ebasco Services Incorporated, 107 NLRB 617, 621 ; Ohio Associated Telephone
Company, 91 NLRB 932, 934.
MAGNET COVE BARIUM CORPORATION 1207
construction." During the workweek ending April :5, Kitchens was classified as .a
payloader operator, also at $1.35, unloading coal and filling up bins. He was not
asked what work he had been doing prior to the layoff. Despite the impression given
by the reference to his payloader operator classification, he had in fact been a mem-
ber of the bagging crew for about the last 6 weeks prior to April 5. His versatility
and the Company's recognition if it are attested to not only by his assignments prior
to the layoff but also by Chambers' later notice to him of a temporary job with an
independent contractor who was engaged on a job at the plant. In any event, and
whatever Kitchens' classification, Donovan testified that there would have been no
need for a payloader operator at night after the bagging crew was removed, so that
Kitchens would have been laid off had he been working as a payloader operator
during his last few weeks.)
To show that there was a drop in production which prompted the layoffs, figures
were submitted showing the number of carloads of products shipped from the plant
by months. There is no marked drop without the figures for April and May 1957,
which of course were not available on April 5. Figures were also offered to show
the number of bags produced per month and the inventory in bags at the end of each
month. Comparison could hardly be made or conclusions drawn from these figures
since they included both 50-pound and 100-pound bags but did not list the number
in each category. Comparison by carloads could not be altogether accurate, either,
since boxcars vary in capacity from 60,000 to 100,000 pounds. This very limited
proof is further affected by testimony that some, if only occasional, shipments are
made from the plant by truck. The evidence concerning shipments is thus incon-
clusive. Whether we consider shipments, production and inventory, or man-hours
spent in production, the figures for March 1957, while not the highest, are relatively
high and would not themselves justify the layoffs. They might be considered to
justify the hope prior to April 5 that business and orders would increase. Counsel
have not indicated or even suggested by analysis any definite conclusions to be drawn
from the mass of figures made available for inspection or submitted at the hearing.
To the extent that the accuracy of the Company's prognosis based on orders, as
distinguished from production up to April 5 may be relevant, production figures
through May would be considered: These show a decline in tonnage produced from
3,183 in October 1956 to a projected 2,233 in May 1957. While production for the
months prior to the layoffs was thus considered in detail, the more relevant factor
is the need for the men on April 5 and the outlook at that time. As Donovan
explained when he testified that business is down, he judges by the orders received.
Production is a reflection of the orders, there being no intervening obstacles; and
we must consider the evidence concerning orders for indication that the layoffs were
economically motivated or that they were discriminatory.
Chambers testified that for a month or more he and Donovan had noted that
they were running short on orders. Donovan's reliability has already been noted.
Chambers likewise impressed me as a credible and accurate witness. Although he
erred as in his recollection that Evans was on the night shift, he faced a relatively
lengthy cross-examination which served further to bolster his credibility. Chambers
discussed with Donovan, as did Donovan with the office in Houston, the need to lay
some men off; but they kept putting it off. In fact Talbot, Donovan's superior in
Houston, had from about February, suggested layoffs. (The figures indicate a
marked decrease in business for that month.) But Donovan maintained that the
men were needed for cleaning up and landscaping. Also discussed was the possi-
bility of business coming in, but this did not materialize. Donovan testified that
he never discussed the Union with Talbot.
Chambers testified that they had on prior occasions run short of orders. When
not sacking, the men were assigned to so-called cleanup work. This had earlier
been actual cleaning up in connection with new construction which had been com-
pleted in the fall of 1956, some of it by an outside contractor. Then followed such
additional work as filling, grading, landscaping (this included draining of a pond),
concrete work, and stacking machinery. There had been a similar shortage of
orders before Christmas 1956; Chambers plausibly explained that more cleanup work
was assigned to the men. If it be urged that failure to retain the men on cleanup
jobs when there were no orders indicates discrimination, such a finding is not
warranted on the facts before us.
Cowart testified that on April 5 there were two orders on the board and one-half
order uncompleted on the track. According to Powell, there were three on the
board. As distinguished from production figures and shipments, it is clear from
the General Counsel's witnesses that there were few orders and little work to be done.
Although Powell offered a general statement that orders had picked up considerably,
he declared that the orders posted on April 5 would take about 8 hours to fill.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chambers and Donovan explained that, with no orders to be received until Monday
morning, they wanted to save the work on hand for the day crew on Monday.
Farley, the plant accountant, testified in detail concerning the orders on hand on
April 5. It appears that orders are received from the Houston office; some specify
the shipping date, others are filled and shipped as the plant can get them out. With
respect to orders for products to be shipped later in the month, Farley testified that
railroad demurrage charges would have been high had those orders been filled early.
That this is considered in the actual operation of the plant is clear when we realize
that all of the other witnesses referred only to the orders which called for immediate
shipment; later deliveries were not within their contemplation.
The plant has 2 mills, each with a production capacity of 7 tons per hour. One
is used for lignite products, the other for clay products. Seldom are both operated
at the same time. On clay, the machine fills its storage tank in about 7 hours;
the product must then be bagged. The machine is usually run until the tank is full.
If there are no orders on hand, the product is not bagged, so that the machine is
stopped until bagging begins. Since an 8-man crew can bag more than a mill pro-
duces, the tank is not full while the men are bagging; in fact, a crew can empty a
tank in 7 hours while the mill is running.
On lignite, the storage tank is not filled until an order is received since the product
packs down quickly. After an order is received, one-third or a quarter of the tank
is first filled; the bagging is then commenced, and the mill can keep pace with it.
Whereas a 40-ton car is normally loaded with clays in 11/2 hours, it takes 31/2 hours
to load with lignite.
The plant also has inventory storage tanks, but it is more economical to
ship the products as they come off the mill rather than after storage. Previously
and for 20 years, when it had no storage facilities, the Company had operated
with 2 packing crews, it being necessary to pack and operate the mill at the same time.
Since the layoffs on April 5, there have been periods when the men had
nothing to do. On the other hand, there has been a little overtime work, not
because there was more work than one crew could handle, but because of
time lost in waiting for material. It was stipulated at the hearing that there
has been no increase in the average number of hours worked per week.
Whatever testimony we consider concerning the time required to fill the orders
posted on April 5, there was not enough work for both the night crew on that
day and the day crew on April 8. Donovan explained further that, had the
night crew been put to work on Friday, April 5, that would have started another
week for them, and if, as it appeared, there were not enough work for them,
and for the day crew, the paper work connected with employment for only
1 day would be as great as if they were all employed for the entire week.
For evidence or indication of discrimination, the General Counsel inquired
into the possibility of withholding orders from the plant and routing them elsewhere.
But this does not appear to have been done. Of the Company's own plants,
no other produces the products made at the Zavalla plant, and there is no
evidence that the work was ever sent to another Company except once some time
back, when there was delay in obtaining a necessary casting.
The men to be laid off were selected according to ability and their performance
by Foreman Haskins, in consultation with Chambers and Donovan on April 4,
and Donovan told Chambers at that time to come back the next day. Donovan
testified that in connection with the selection there was no discussion of union
activity; men were retained who he believed supported the Union. On the after-
noon of the 5th, Chambers received from Donovan a list which showed those
who were to be retained and those who were to be laid off. Chambers could
name only three who remained and who he believed were union m°mhers; whether
he himself had any greater knowledge of the activities and membership of those
who were laid off does not appear. We have seen from the figures given by
the General Counsel's witnesses and their general statements concerning member-
ship, that whether or not known to the Company, other union members were
evidently retained. Donovan's information was that 98 percent of all who attended
the meeting of March 30 had joined. Chambers testified generally that he knew
something about the union organizational effort; he kept some men who were
members, and laid off some who were members; and that union support did not
have anything to do with the selection for layoff.
Chambers testified that he first learned that the Union was trying to organize
the plant about March 30, when the meeting was held. The time sequence
itself , i. e., knowledge about March 30 of the union meeting , the filing of a
petition by the Union on April 2, and discharges effected on April 5, gives rise to
a serious suspicion of causation. Contrariwise it might be argued that even a
MAGNET COVE BARIUM CORPORATION 1209
modicum of circumspection would have dictated a slower sequence had the layoffs
been discriminatory instead of economic and based on an immediate shortage
of orders. (The time sequence was recently considered in Darlington Manufacturing
Company, Intermediate Report 87 (not reported in printed volumes of Board
Decisions and Orders), April 30, 1957, to a different conclusion.) But such a
sequence is only one, if an important, element to be considered with the evidence
of other facts and circumstances as adduced; else these cases could be determined
by a mere reference to the calendar.
Thus as noted supra, the fact is that there has been need for only one shift
since April 5, and, as stipulated, no new men have been hired. Evans has been
recalled, and Kitchens was recommended for short employment by a contractor
doing work at the plant. Further, there has been no increase in the average of
hours worked per weeK by the employees wno were retained. All of this is evidence
of lack of work to warrant a second bagging crew after April 5. There is no
evidence that such lack was contrived by the Company by diversion of orders.
It was brought out, as noted, that the Company's nine other plants do not make
any of the products manufactured at the Zavalla plant. Nor is there evidence of
cleanup work to be done so that those laid off should have been or would have
been, but for discrimination, continued on the job.
We do not know the basis for Chambers' testimony that the new men, Roebuck
and Lofton, knew that they would be laid off. We can but wonder whether
he meant tnat seniority was considered; that, regardless of any seniority con-
sideration, it would be manifestly unexpected for these 2 men to be retained
when they had been employed for less than 1 month; or that in their short period
of service they could not have acquired the ability, even if limited, of the other
men. When the question of seniority was put to Donovan, he most positively
declared that he considers merit only. Nor has the relative seniority of the other
six who were laid off and of those who were retained been shown.
Only with respect to Powell, the sacker operator who was laid off, and Widner,
who was retained, was there any statement of relative abilities. Chambers testified
that Powell was a satisfactory employee, but that Widner was better qualified,
putting out more sacks and being on the job when Powell delayed it. Pressed on
cross-examination, Chambers testified that Powell a few times caused trouble and
delayed the job by causing the screws on the machine to stop up; but this was not
given as a reason for his discharge, and Chambers followed that testimony with
the statement that Powell was a satisfactory employee. Donovan referred to
drinking on the job by Powell and Evans. But he did not suggest their layoff
for that reason; he merely approved their selection by the foreman, as he approved
the selection of the others. As for Evans' subsequent recall, Donovan testified
that he thought Evans had learned a lesson; it has not been claimed that the recall
was discriminatory.
Of the 5 night-shift men who were laid off on April 5, only 3 had been em-
ployed prior to the middle of March 1957. Production records for all but
approximately 3 weeks immediately preceding April 5 would include output by
the day shift, 3 of whose men were laid off, and by the night shift, which likewise
included 3 men laid off on April 5. Whatever the difference in output between
the 2 shifts, it does not appear how such difference could be charged to the 3
on each shift who were laid off or to the 5 on each shift at the time. Thus the
shift production records, weekly and monthly, called for and inspected, cannot help
us to determine whether the Company, as testified, considered the qualifications
and performance of the employees in making selections for layoff.
Nor is there evidence concerning different union status or extent of union activ-
ity of employees who were retained (except Evans, who was recalled, and Mc-
Donald, who also supported the Union, was not laid off, and testified for the Gen-
eral Counsel). We have seen that all but a very few of the employees joined the
Union on March 30; whether the few joined at another time or did not join at all, we
do not know. But we recall that all who remained after April 5 openly supported
the Union. We are afforded no basis for comparison in retention and layoff on the
basis of union membership. As for activity on behalf of the Union beyond signing
of a membership card, we have no evidence even with respect to the eight laid off.
There is thus no evidence of discrimination in the decision to lay off some employees
and no basis for finding discrimination in the selections made.? What little we do
have in this connection indicates the absence of unlawful discrimination: Cowart,
who was known to Donovan to have participated in the March 30 meeting, and to
whom Donovan made violative remarks as found supra, appears from the testimony
7 Cf. Cranston Print Works Company, 117 NLRB 1834.
1210 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
to have been a more active union proponent than any of those who were laid off. He-
not only attended the meeting on March 30 , but he also apparently helped to arrange
it or to inform the men of it, and he was spoken to by Donovan concerning Cowart'&
alleged threat to whip I or 2 of the men if they told Donovan about the Union. It
stands uncontradicted that Cowart wanted the Union and said that " it would be a
good place to work if it was union."
Continuing with a summary of the evidence , we have been told, and the orders,
on hand on April 5 indicate , that on that day there was little production work left
for even 1 crew, much less 2. While the men , when not engaged in production,
had previously done so-called cleanup and landscaping work, it has not been shown,
although the records of production and cleanup work were cited as available and
company records were in fact examined at the plant , that the testimony concerning
absence of orders and lessened production was untrue . It is clear that production
prior to the layoffs did not require full employment of the two crews ; the necessity
and propriety of assignments for cleaning up and landscaping are not questioned.
While discrimination might be found if it were shown that the need for such other
work did not fall off , we have on that point only Donovan 's testimony that in fact it
could now be handled by the production crew and the watchmen . Certainly none
of the alleged discriminatees testified to the contrary that landscaping work remained
to be done . We have no basis for rejecting the Company 's testimony that orders
had fallen off and that the other work could be performed without a second bagging
crew.
To summarize , the orders on hand on April 5 warranted layoffs , and it does not
appear that the Company discriminated in its selections for layoff. There had
been times before when orders were few. On those occasions , men had been
assigned to other tasks . To explain failure to plan such other assignments after
April 5, the Company declares that the other work was virtually completed; and it
has continued its operation since that time with a smaller force. Whether or not
cleanup and landscaping work remained to be done is a question of fact. If evi-
dence is available to show that such work remained to be done so that the situation
on April 5 was similar to that on earlier occasions when men were laid off, such
evidence has not been submitted . The explanation for the layoffs is plausible and
nondiscriminatory.
An implausibility is suggested by the hiring of two of the men in the middle of
March . But it may fairly be recognized that, as long as a second crew was on the job,.
it was necessary that it be a full crew (we have seen that it consists of 8 men, some-
times 9 ; there is no evidence that fewer could operate efficiently ) even while the
Company was considering the necessity of laying them off. (We are here consider-
ing only the issue of discrimination, not questions of ethics or general company
policy. ) That a full crew was needed while any continued appears from Donovan's
testimony that he removed 2 old men from the sacker and replaced them with the 2
new ones in March . Powell testified that, when he was hired, in April 1956, he
was told that the job would be permanent . Certainly such assurance does not indi-
cate discrimination in his layoff a year later.
There is so clearly no evidence of discriminatory selection of employees once the
layoff was decided upon; and the virtual absence of orders on April 5 so readily
establishes the economic basis for the layoffs, that the decision here would be clear
but for the fact that the union meeting was held on March 30, the Saturday before.
But reflecting again on the suspicious aspect of any possibility of connection between
the meeting and. the layoffs , we have no sufficient basis for finding discrimination.
We cannot , of course , say that , once the Union 's organizational campaign got under
way, the Company could not under any. circumstances meet the economic need to
reduce its working force . The proof here indicates once again the fallacy of post hoc,
ergo propter hoc. We cannot properly find here , in the language of the Whitin
Machine Works case 8 that concerted activities of the employees "weighed more
heavily" in the decision to lay them off than did economic considerations.
The General Counsel has suggested that Donovan's violative statements indicate
his discriminatory intent. Interference can and has been found regardless of intent.
But Donovan 's statements that he could lay men off admittedly included a clear dis-
claimer of intention to do that. If, in the perspective of what Donovan said, we are
to determine the motive for what he did, we must not ignore the very statements
themselves ; we can no more find discriminatory intent in his statements than in the
act of layoff . If we would assume that Donovan cagily hedged his statements to
avoid a subsequent appearance of discrimination , we can more readily continue to the
8 N. L. R. B. v. Whitin Machine Works , 204 F. 2d 883 , 885 (C. A. 1).
MAGNET COVE BARIUM CORPORATION 1211
point of assuming that, cagily, he would not have mentioned layoffs; we can better
avoid both indulgences.
As with the short period between the union meeting and the layoffs, it is urged fur-
ther that the fact that the layoffs occurred so soon after the violative statements indi-
cates that the action against the employees on April 5 was in fact discriminatory:
(The proximate meeting is cited as cause; the proximate statements as concomitants.)
But if the statements were not intended as threats, and specifically disclaimed such
intent, it is not clear how they could provide the element of threatening intent in
connection with the layoffs. True, an atmosphere of interference may warrant the
inference that another violation was committed. This principle of recognizing a
reasonable possibility or predisposing tendency is frequently applied. But in the
instant case we have seen that the interference stemmed from Donovan's erroneous
understanding of what he might lawfully say while he took care to abide by the law
as he understood it. He was frank in declaring his attitude and describing what he
said. I believe that he was equally frank in describing what he did on April 5 and
his attitude or intent at that time. If Donovan was under the mistaken impression
that he could lawfully warn employees, as he did, that he could discharge them while
disclaiming any intention to do so, there is no evidence that he believed that the law
permits discharges for union activity or that he acted on any such belief. If his
remarks be cited as interference, they can also be recognized for their disclaimer of
discriminatory intent. His "could" or "should" constituted interference, as has been
found; but the "would not," while not curing that violation, must likewise be con-
sidered, on the issue of intent. Here also we must bear in mind that he told
employees (without any accompanying threat which is sometimes noted) that they
would have to judge for themselves whether they should join the Union.
The difference between an indicated intent to lay men off and Donovan's mistaken
notion of what he could lawfully say to employees is also manifest in his statements
to Cowart which are not alleged as violative. Even if not denied, the latter state-
ments do not indicate discriminatory intent to support the 8 (a) (3) allegations;
such intent is not in keeping with the statements which Donovan admittedly made
and which have been found. Thus, considering the entire record in its various
aspects, I find that the layoffs of April 5 have not been shown to have been
discriminatory.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in con-
nection with the 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
Since it has been found that the Company has engaged in and is engaging in
certain unfair labor practices affecting commerce, I shall recommend that it cease
and desist therefrom and take certain affirmative action in order to effectuate the
policies of the Act.
It has been found that the Company, by threats that it could discharge employees
in connection with union activities, has interfered with, restrained, and coerced its
employees in violation of Section 8 (a) (1) of the Act. I shall therefore recommend
that the Company cease and desist therefrom.
For the reasons stated in the subsection entitled "The alleged violation of Section
8 (a) (3)," I shall recommend that the complaint be dismissed insofar as it alleges
the discriminatory discharge of, and refusal to reinstate, Robert M. and Charlie E.
Weaver, Harris, Evans, Lofton, Roebuck, Powell, and Kitchens.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers,
Local No. 393, and International Union of Operating Engineers, Local No. 450, are
severally labor organizations within the meaning of Section 2 (5) of the Act.
2. By threats concerning union activities, thereby interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed in Section 7 of the
Act, the Company has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.)
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations 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 threaten that we can discharge our employees in connection
with protected union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, Local No. 393, and International Union
of Operating Engineers, Local No. 450, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
All of our employees are free to become, remain, or to refrain from becoming
or remaining, members in good standing of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, Local No. 393, or International Union of
Operating Engineers, Local No. 450, or any other labor organization except to the
extent that this right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
MAGNET COVE BARIUM CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
L. E. Schooley , Inc. and Harold M. Voorhees . Case No. 30-CA-
501. January 0, 1958
DECISION AND ORDER
On June 28, 1957, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, a copy of which
report is attached hereto, finding that the Respondent had engaged
and was engaging in certain unfair labor practices, and recommend-
ing that it be required to cease and desist therefrom and to take certain
affirmative action. He also found that the Respondent had not en-
gaged in certain other unfair labor practices, and recommended that
the complaint be dismissed insofar as it alleged such unfair labor
practices. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
119 NLRB No., 140.