Mills-Morris Co.

National Labor Relations Board - Board Decisions

Jun 8, 1954

108 N.L.R.B. 1241 (N.L.R.B. 1954)

MILLS-MORRIS COMPANY 12.41
tory interpretation , I feel that we cannot avoid the respon-
sibility.
There are important issues of law raised by the motion in
this case . As the majority has decided to deny this motion
without considering the legal questions raised , I find no occa-
sion here to express any opinion upon them. Indeed, I have
arrived at none . I hold only that it is proper for the Board
to consider those questions as raised by the motion at this
stage in this proceeding , and I would grant the motion to
that extent.
Member Murdock took no part in the consideration of the
above Order Denying Petition for Reconsideration.
MILLS-MORRIS COMPANY and RADIO AND TELEVISION
ENGINEERS LOCAL 1275, INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, AFL. Case No. 32-
CA-344. June 8, 1954
DECISION AND ORDER
On January 15, 1954, Trial Examiner Eugene E . Dixon issued
his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices , and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto . Thereafter , the General Counsel and the Respondent
filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing , and finds that no prejudicial error
was committed . The rulings are hereby affirmed . i The Board
has considered the Intermediate Report,2 the exceptions and
briefs , and the entire record in this case , and hereby adopts
i The Respondent excepted to the Trial Examiner ' s ruling permitting the General Counsel
to amend the complaint to allege that Foreman O'Kelly threatened employees on July 10,
1953, that the Respondent's plant would be closed down if the Union's organizational campaign
was successful The Trial Examiner assured the Respondent that he would favorably consider
any request by the Respondent at the end of the hearing for additional time in order to pre-
pare to meet this allegation . No such request was made and the issue was fully litigated.
Under the circumstances , we find that the Respondent was not prejudiced by the Trial
Exammer's ruling. We shall therefore overrule this exception. See Coca-Cola Bottling Com-
pany of St. Louis, 95 NLRB 284.
2 The Intermediate Report contains certain inadvertences, none of which affects the Trial
Examiner 's ultimate conclusions or our concurrence therein. Accordingly , we make the
following corrections : (a) page 1247 , par. 3, the date " April 25" should read " April 27,"
(b) page 1250, par. 4, the date "April 23" should read "April 22."
108 NLRB No. 169.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner ' s findings ,' conclusions , and recommenda-
tions , with the following modifications:
1. We agree with the Trial Examiner ' s conclusion that the
Respondent violated Section 8 (a) (1) of the Act. In so finding
we rely , as did the Trial Examiner , upon the following conduct
which, we find , is attributable to the Respondent : ( 1) Lichter-
man's interrogation of his employees at the April 27 meeting
and his threats that having a union would result in a curtail-
ment of privileges then enjoyed by his employees , ( 2) Lichter-
man's interrogation of Stiverson on April 22 as to what
Stiverson had heard about the Union and who had joined,
(3) O'Kelly ' s statement to Keith that the Respondent would
close its establishment if the Union came in , ( 4) Lichterman's
holding out to Green the possibility of promotion if he abstained
from union membership , and (5 ) Walker's questioning of Green
as to whether the Union was going to pay him higher wages.
2. The Trial Examiner further found that the Respondent
discharged Robert Hamblin on April 22 , 1953, because of his
activities on behalf of the Union , and thereby violated Section
8 (a) (3) of the Act. The Respondent has excepted to this find-
ing.
As set forth more fully in the Intermediate Report , Hamblin
joined the Union on the evening of April 20 . On the same evening,
employee Sawyer , whose membership in the Union had not yet
been solicited , informed Sales Manager McIntyre that he had
heard rumors about a union at the Respondent ' s establishment.
However, the record is devoid of any evidence that Sawyer
told McIntyre the name of the Union in question , or informed
him of the department or the employees involved in the organi-
zational campaign.
During the afternoon of April 21, Keith, who was instrumental
in contacting the Union and aided in its organizational drive,
commenced a discussion in the service shop with several
employees . Present in the shop during this conversation was
Richardson, whom the General Counsel alleged was, and the
Trial Examiner found to be , a supervisor . In the course of the
conversation, Keith stated that "the employees were 100%
union," apparently referring to the radio and television serv-
ice shop employees.
On the afternoon of April 22, upon learning that Hamblin
had failed to recommend exclusively the Respondent ' s product
to a potential customer on the preceding evening, Lichterman,
the Respondent ' s president , summoned Hamblin ' s supervisor
and instructed him to discharge Hamblin. While this was being
done, Lichterman asked Stiverson , who had become a member
3 The Trial Examiner found that the Respondent violated Section 8 ( a) (1) of the Act by
Lichterman 's holding out to Green the possibility of promotion to foreman if he refrained from
union activities . However, he failed to recommend that the Respondent take appropriate steps
to remedy this unfair labor practice, and the General Counsel excepted to his failure to do
so. As we concur in the Trial Examiner 's finding in this respect, we shall frame our order
and the related notice provisions to effectuate this finding.
MILLS-MORRIS COMPANY 1243
of the Union at the same time as Hamblin , whether Stiverson
had heard anything about a union or anyone joining a union.
Stiverson replied that the whole service department had be-
come members.
On the basis of the foregoing , the Trial Examiner concluded
that the Respondent was aware that Hamblin was a member of
the Union at the time of his discharge , and that this knowledge
motivated the Respbndent in terminating Hamblin's employ-
ment. Apart from having joined the Union on the evening of
April 20, there is no evidence that Hamblin engaged in any
union activities of which the Respondent could have become
aware . None of the Respondent ' s threats or coercive state-
ments were ever directed toward Hamblin . The record dis-
closes , and the parties readily concede , that Hamblin was a
slow worker and that he had been prodded on occasions to
put out the work faster . In fact , a few weeks prior to his dis-
charge and well before he joined the Union , the Respondent
denied Hamblin ' s request for a wage increase , stating that
Hamblin's work did not warrant the payment of additional
wages . Moreover , it is undisputed that Hamblin , who frequently
made outside television service calls , did not recommend the
Respondent ' s product to Sales Manager McIntyre ' s father upon
request of his opinion , a matter about which the Respondent
might justly complain . Indeed, Hamblin recommended a com-
petitor's product.
While the matter is not entirely free from doubt , we conclude
that the General Counsel has failed to sustain the burden of
proving by a preponderance of the evidence that the Respond-
ent discharged Hamblin because of his activities on behalf
of the Union in violation of Section 8 (a) (3), and that the Trial
Examiner erred in so finding . Accordingly , we shall sustain
the Respondent ' s exceptions in this connection , and we shall
therefore dismiss the allegations from the complaint.
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 Re-
spondent , Mills-Morris Company , Memphis , Tennessee, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their unionmem-
bership, sympathies , or activities , in such a manner as to
interfere with, restrain , or coerce them in the exercise of
their rights under Section 7 of the Act.
(b) Threatening its employees with loss of privileges or
employment or threatening other reprisals against them be-
cause of their union membership , sympathies , or activities.
(c) Promising its employees economic or other benefits
in consideration for their remaining out of, voting against, or
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusing to work in behalf of Radio and Television Engineers
Local 1275, International Brotherhood of Electrical Workers,
AFL, or any other labor organization.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to join or assist Radio and Television Engineers
Local 1275, International Brotherhood of Electrical Workers,
AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage
in concerted 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.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Post at its plant in Memphis, Tennessee, copies of the
notice attached hereto and marked "Appendix A." 4 Copies of
said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the Respondent
immediately upon receipt thereof and maintained by it for a
period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced,
or covered by other material.
(b) Notify the Regional Director for the Fifteenth Region,
in writing, within ten (10) days from the date of this Order,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the Respondent violated Section 8 (a) (3) and (1)
of the Act by discharging Robert Hamblin, be, and it hereby is,
dismissed.
Member Peterson took no part in the consideration of the
above Decision and Order.
4In 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 "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
MILLS-MORRIS COMPANY 1245
WE WILL NOT interrogate our employees regarding their
union membership , sympathies, or activities , in such a
manner as to interfere with, restrain , or coerce them
in the exercise of their rights under Section 7 of the Act.
WE WILL NOT threaten our employees with loss of
privileges or employment or threaten other reprisals
against them because of their union membership, sym-
pathies, or activities.
WE WILL NOT promise our employees economic or
other benefits in consideration for their remaining out
of, voting against, or refusing to work in behalf of Radio
and Television Engineers Local 1275, International
Brotherhood of Electrical Workers , AFL, or any other
labor organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form labor organiza-
tions , to join or assist Radio and Television Engineers
Local 1275, International Brotherhood of Electrical Work-
ers, AFL, 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 such activities , except to
the extent such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3)
of the Act.
All our employees are free to become or refrain from be-
coming members of the above -named labor organization or
any other labor organization.
MILLS-MORRIS COMPANY,
Employer.
Dated . ............... By....................................................
(Representative ) ( Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered , defaced , or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Radio and Television Engineers Local
1275, International Brotherho'id of Electrical Workers, AFL, herein called the Union, the
General Counsel for the National Labor Relations Board, herein called the General Counsel
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Board respectively, by the Board's Regional Director for the Fifteenth Region (New
Orleans, Louisiana), issued a complaint dated September 21, 1953, against Mills-Morris
Company, herein called the Respondent, alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat.
136, herein called the Act.
With respect to the unfair labor practices thecomplaint, as amended at the hearing, alleged
that Respondent committed unfair labor practices against its employees by (a) interrogating
them regarding their union activities, (b) threatening them with reprisals because of their
union activities, (c) promising them economic benefits if they would refrain from union
activities, and (d) discharging Robert Hamblin because of his union activities.
Admitting the commerce facts alleged in the complaint, Respondent's answer denies that
the facts establish the Board's jurisdiction. The answer also denies the commission of any
unfair labor practices and demands proof that the Union is a labor organization.
Pursuant to notice a hearing was held October 19, 20, and 21, 1953, at Memphis, Tennessee,
before the undersigned Trial Examiner duly designated by the Board's Chief Trial Examiner.
The General Counsel, the Respondent, and the Union were represented at the hearing and were
give full opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. Oral argument was waived but briefs were received from
the General Counsel and the Respondent.
Prior to the hearing a motion to make the complaint more specific was denied by Trial
Examiner Richard N. Ivins. It was also denied when made again at the hearing as was Re-
spondent's motion to strike certain paragraphs of the complaints.
Upon the entire record and from my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Tennessee corporation maintaining its principal office and place of busi-
ness at Memphis, Tennessee, where it is engaged in business as a wholesale distributor of
automotive parts, electrical appliances, and other items and as a retailer of other equip-
ment. In the course and conduct of its business in the 12 months preceding the hearing, Re-
spondent purchased goods and merchandise valued in excess of $ 55,000, of which at least $ 50,000
worth was purchased and received from points outside the State of Tennessee. During the
same period Respondent sold goods and merchandise valued in excess of $ 100,000, of which
at least $ 50,000 represents the value of said merchandise and goods sold to persons or firms
situated in places outside the State of Tennessee. In addition, during the same period of time
Respondent sold an unspecified amount of merchandise to the Naval Air Training Center at
Millington , Tennessee , the United States Army Depot at Memphis, and an Air Force installa-
tion center at Memphis.
Despite Respondent's contention to the contrary, I find that it is engaged in commerce within
the meaning of the Act. Cf. Marden Manufacturing Company, 106 NLRB 1335.
II. THE LABOR ORGANIZATION
The record as a whole shows, and I find, that Radio and Television Engineers Local 1275,
International Brotherhood of Electrical Workers, AFL, exists for the purpose, in whole
or in part, of dealing with employers concerning wages, hours of employment, or conditions
of work and is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
Apparently with little or no preliminary employee discussion, on Saturday, April 18, 1953, i
Roy Keith, employed by Respondent as a television technician, called Eugene Parham, the
i All dates are in 1953 unless otherwise indicated.
MILLS-MORRIS COMPANY 1247
business agent of the Union , about organizing Respondent's employees . The following Monday
Keith arranged a meeting for that night with Charles Gullick, Robert Hamblin, Kenneth
Stiverson , and Cecil Gann, all radio and television technicians , employed by Respondent in
the service department or in the parts and stock department. The five employees met that
night and joined the Union.
The discharge of Hamblin 2 days later is alleged by the General Counsel to have been dis-
criminatorily motivated . The Respondent 's defense is that (a) it had no knowledge of Hamblin's
union activity at the time of his discharge, and (b) that Respondent 's simmering inclination
to dispense with Hamblin 's services because of his slow production rate reached a climax
by reason of Hamblin 's recommending, on a service call, a make of television other than the
one sold by Respondent.
The main allegation of interference , restraint , and coercion by Respondent involves re-
marks by Respondent 's president , Martin Lichterman , particularly at a meeting with the
union members on April 27 . This and other allegations of Section 8 (a) (1) violations of the
Act turn on questions of agency, privilege under Section 8 (c) or credibility resolutions.
B. Interference , restraint , and coercion
On April 25 , after Respondent 's officials became aware of the Union ' s campaign and the
identity of the employees interested therein, Respondent 's president , Lichterman, called the
union members (Gullick, Gann , Keith, and Stiverson) into his office for a meeting. Present
also were Sales Manager Gene McIntyre, Jr ., Service Manager Milton Allen , and a Mr.
Dunlap , the factory representative--not an employee of Respondent . The four union members
testified about the meeting as witnesses for the General Counse4t in substance as follows:
The meeting lasted about an hourandahalf. When Lichterman started talking he had a docu-
ment in his band that be identified as a copy of a collective -bargaining agreement between
the Union and Orgill Brothers.3 Lichterman indicated that the contract was "not so bad" and
that he was going to sign the same type of contract; but before he signed , he had a few things
to say. He told the employees that in a large business , unions were all right , but that a union
was not needed in a business like Respondent 's; that the employees were like brothers to
him but after signing the contract he would "hate their guts." He talked about the benefits
and prospects they then had which they would not have under a union. By way of illustration
he gave examples of how recognition of the Union would personally affect each of the employees.
Telling Gann that he was in line for promotion to outside salesman on the road , he asked
Gann if the latter thought he could be put into the position if he joined the Union . Answering
the question himself, Lichterman said that he could not - -that he would keep Gann in the estab-
lishment where he could be watched , and commented further, "I couldn't trust you on the
road."
Keith was told he was a prospective assistant service manager --or even service manager
if Milton Allen left--but not in the event the contract was signed . With a union, Lichterman
would not trust Keith "back there as service manager" he said.
In his remarks directed to and about Stiverson , Lichterman pointed out that Stiverson had
had a great deal of compensated sick leave and added , "Next time you get sick I am going to
fire you for chronic sickness . You have everything to lose and nothing to gain because you
are in the Union."
As for Gullick . Lichterman pointed out, he was pretty much his own boss. No check was
made on the length of time he spent on any given service call or on exactly what he did while
there. Lichterman suggested the possibility that Gullick at times could be engaging in activity
of a personal nature quite beyond the requirements of the job or the scope of his authority.
2Stiverson was also called as a witness on behalf of the Respondent . Of the four, Stiverson
was the only one who, on direct examination by the General Counsel, did not testify with
certainty that Lichterman had said he would take certain action regarding working conditions
if or when he signed a union contract. At the beginning of his testimony Stiverson 's recol-
lection was that Lichterman had said he could take certain action , not that he would. But
on particularizing Lichterman 's remarks illustratively , Stiverson'p testimony in many
instances accorded with the others ' and Lichterman 's threats were alluded to in terms of
what he would do rather than could do. In any event, whether Lichterman threatened that he
could do them . I would consider the effect as being the same.
3 Apparently another radio and TV dealer with whom the Union had a contract.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevertheless, no question was ever raised 4s to such a possibility--but once he signed the
contract, according to Lichterman, he would watch for such activity on the part of Gullick
and the first instance of such conduct that came to his attention would result in Gullick's dis-
charge.
After completing his illustrations Lichterman polled each employee as to whether he had
changed his mind about the Union.4 Receiving negative replies from each Lichterman said,
"All right, boys, I am going to sign it Wednesday. It is your butt and not mine."
In addition to the foregoing, according to the General Counsel's witnesses, Lichterman
also told the employees at this time that when he signed the contract he was going to make
it so "miserable around there" for them that they would not stay on their jobs long, that when
summer came he would lay them off and replace them with other union members; that as for
references, all that he could tell anyone about them was that they were "disloyal to the
Company." According to Gann's further testimony, he was called into Lichterman's office
the following day and again asked by Lichterman if he had changed his mind about the meeting
of the previous day. Gann said he had not. Lichterman said, "You mean after that meeting
yesterday you haven't changed your mind." Gann said, "No, sir" and walked out.
McIntyre, Allen, and Lichterman all testified about the meeting of April 27. The substance
of Allen's testimony was that Lichterman told how he had studied labor relations in college
and was thus familiar with "those things." Lichterman stressed the advantages and disad-
vantages of unions and traced the progress of each employee showing how they had gained
substantially in Respondent's employment. He also referred to the "many benefits that the
Company had given them voluntarily," and "stressed the fact" that the employees did not
need a third party to discuss grievances for them since they were always welcome at the
office for such discussions.
McIntyre testified as follows about the April 27 meeting: That Lichterman commented
about the Orgill Brothers' contract saying he "would" sign such a contract if that's what
the employees wanted but that he wanted them to hear the whole story. He had studied about
unions in school. Unions had accomplished the most good in the coal mines but he did not
think a union was needed in Respondent's business because his door was always open to the
employees. As an example he cited an uistancewhen Gann came to him and asked for a 10-cent
raise. They talked it over and settled for 5 cents. He also mentioned Stiverson's receipt of
wages during his illness saying that under the union contract he was not obligated to treat
him that way, that that became an obligation of the Union "or something similar to that"
according toMclntyre's testimony. McIntyre corroborated the comments attributed to Lichter-
man to and about Gullick, testifying that it was said in a jocular vein but that Lichterman did
not say he "would" discharge Gullick but that he "could" discharge him.
According to McIntyre's further testimony, Lichterman also told the employee that up to
then they had had no layoffs because of slow work but that if work became slack he could lay
them off which was "agreeable to the Union"; that with respect to references he would not
feel obligated to say that the employees "were loyal to the Company." He concluded his re-
marks by saying he did not feel they needed a union but that he wanted them to think it over
very thoroughly. He then asked each one if he had made up his mind. McIntyre also testified
that Lichterman made no threats to the employees; that he did not make the remark about
hating his employees' "guts"; that Lichterman did not say he was going to sign the contract
but that he would be willing to sign.
Lichterman's testimony was: That he traced the history of the labor movement saying
that there were reasons for unions in many places but that he did not think Respondent's busi-
ness was one of them; that he wanted to relate "some advantages and disadvantages of being
in a union." He then went "over it with each employee to personalize how they had fared at
Mills-Morris," and "asked each in turn if they thought we needed a third party to help us
iron out our differences." He referred to Gann and himself agreeing on a wage increase and
asked Gann if he thought they needed someone to come in and arbitrate between them. He
referred to Stiverson's never missing a paycheck while in the hospital and asked, "Why do
we need some third party to come in and adjust that? As a matter of fact," he commented,
"if there was a union in here we would have to bring them in on it before I could give you
any other wages."
4Accordmg to Gann's testimony, he was asked in effect by Lichterman if his answer was
motivated by fear of the others and also was asked if he was now "on the fence." Gann's
answer was "no" to both questions.
MILLS-MORRIS COMPANY 1249
As for Gullick. he admitted jokingly attributing to him the unchecked and unheeded pos-
sibility of his engaging in extra-job activity but was not certain whether he told Gullick that
if it was found out after a union came in he would be discharged. Lichterman testified, "I
might have said, 'if we had a union contract here, under those conditions, if we found out
about it I would have the right to fire you' I don't remember precisely how I worded it."
Lichterman further testified on direct examination regarding this meeting of April 27 that
"most of the testimony that has been given in this hearing has been substantially correct
except quite a bit of it has been left out." He denied on the stand making the statement he
would sign the contract explaining that he frequently said "If I did sign this" using that as
an example. He then modified this denial by an indication of uncertainty about the matter. He
also denied the "hate your guts" comment attributed to him, testifying that what he did say
was "if you join a union I can't feel the same way about you as I do if you are not in the
Union." He also testified that in his opinion he never threatened or made promises to anyone
regarding his union activities.
An analysis of the foregoing testimony presents little difficulty in reaching a conclusion that
the General Counsel's version is credible. Except for the nonprobative opinions of Respondent's
witnesses that no threats were made by Lichterman in his remarks, there actually is no denial
or refutation of the General Counsel's basic evidence.
In view of this and considering Lichterman's admission that all the testimony about the
April 27 meeting was substantially correct, a and noting the fact that there is no real conflict
or incompatibility in the two versions I find that regardless of what else may have been said
Lichterman did make the remarks attributed to him in the General Counsel's testimony.
Accordingly, I find that in pointing out to the four above employees in what respects their
having a union would result in a curtailment of privileges they then enjoyed in their employ-
ment without a union, Respondent exceeded the scope of expression authorized by Section
8 (c) of the act and thereby violated 8 (a) (1) thereof. In addition to these threats of reprisals
by Respondent against its employees, Lichterman's interrogation of them at the end of the
session as to their own desires and attitudes regarding unionization, coming as it did im-
mediately after and in connection with coercive conduct on the part of Respondent, is also
an invasion by Respondent of the rights of its employees guaranteed under Section 7 of the
Act and violative of Section 8 (a) (1) thereof. Also violative of Section 8 (a) (1) of the Act, I
find, was Lichterman's interrogation of Gann when the latter was called into the office and
asked if he had changed his mind about the meeting of the previous day. 6
Lichterman's statement about the kind of references his employees would merit if they
embraced a union, which I find to have been substantially as set forth in the General Counsel's
testimony also constitutes a violation of Section 8 (a) (1) by Respondent as did Lichterman's
threats to make things so "miserable around there" for them if he signed the contract that
they would not stay on their jobs long and that when summer came he would lay them off
and replace them with other union members.
In addition to the foregoing violations of Section 8 (a) (1) of the Act by Respondent, the
complaint as amended alleges certain other violations by Respondent concerning which the
evidence is as follows:
1. According to the undenied credited testimony of Charles M. Brown, a former employee
of Respondent, sometime between May 7 and 10 Supervisor Henry Burch? asked Brown if
he was going to the "party" that night. Apparently somewhat later Brown asked Burch what
party he was speaking of. Burch identified it as a union meeting. Brown said he had heard of
no union meeting. Later on Brown did learn of a union meeting and told Burch that he was
going. Burch said he did not want a union, that he would not like to work under one but that
if it was necessary he would join it if one "was to come to Mills-Morris."
I find no violation of the Act in the foregoing.
2. Current respondent employee Charles Green testified that on July 16, the day before
the election. Supervisor Gene Walker asked Green if he was going to vote for Walker to
collect the union dues, and also asked Green what his wage rate was and if the Union was
going to pay him more. Green told Walker that the wages were too low. Twenty to thirty
5 All the General Counsel's testimony about the meeting had been offered at the time
Lichterman so testified.
6Syracuse Color Press, Inc., 103 NLRB 377.
7 It was stipulated that Burch, as well as Gene Walker, Warren O'Kelly, and Ritter were
supervisors within the meaning of the Act. Burch did not testify.
339676 0 - 55 - 80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minutes later Green was called into Lichterman 's office where the latter stated that he had
heard that Green was dissatisfied with his wages. Lichterman questioned Green as to whether
he had ever asked for a raise. Green said he had asked Burch . Lichterman told Green he
should not have stopped there but should have come to him or another higher official. Lichter-
man then stated he thought Green could get a raise and also told Green he had a chance of
promotion to foreman by staying out of the Union but that in the Union he "couldn't have a
chance."
In his testimony Walker admitted having a conversation with Green on the day in question
which Walker described on the stand as an airing of his personal opinions. He denied he
asked Green how he was going to vote. He confirmed Green's testimony that the latter had a
conversation with Lichterman that day since he was present for the last part of it. He denied
knowledge as to whether Lichterman sent for Green but testified that Lichterman did not
threaten Green. Lichterman , although testifying that he remembered having a conversation
with Green on July 16, offered no evidence as to what was said nor did he deny or contest
the accuracy of the testimony given by Green.
As regards Green's conversation with Lichterman , except for Walker's conclusion that
Lichterman did not threaten Green, Green 's testimony stands undenied . I credit Green. I
also credit Green in his testimony , undenied by Walker , that Walker asked him if the Union
was going to pay him higher wages.
This question by Walker, in my opinion under the circumstances herein , constitutes illegal
interrogation attributable by reason of Walker 's supervisory status to Respondent . Also in
violation of Section 8 (a) (1) of the Act was Lichterman 's holding out to Green the possibility
of promotion to supervisory status in consideration of his staying out of the Union.
3. Stiverson testified that between 3 and 4:30 on the afternoon of April 23 he and Lichter-
man went outside to look atLichterman 's car radio. On the way back into the building Lichter-
man asked him if he had heard anything about a union or anyone joining a union . Stiverson
said he had . Lichterman asked who and Stiverson replied "all of us," indicating the whole
service department . Lichterman said "you and Cecil, too" indicating surprise.
This testimony is not denied and is essentially admitted by Lichterman in his testimony.
I credit Stiverson and find that this constitutes yet another invasion by Respondent of its em-
ployees' rights by reason of illegal interrogation in violation of Section 8 (a) (1) of the Act.
4. Roy Keith testified regarding a conversation with Supervisor O'Kelly on May 5 or 6
in the presence of several employees including Bill Lynch. Keith said something to O'Kelly
about the Union coming in. O'Kelly said there would never be a union in Respondent 's estab-
lishment. Keith said there was nothing to stop a union from coming in. O'Kelly replied that
he had sat in on management conferences regarding the question of the Union and that there
was "plenty they can and will do to stop it." Keith asked , "Like what? " Kelly replied,
"Close the place down," adding that such a course had been followed by Respondent "up
north."
O'Kelly testified on direct examination that he did not recall making the statement that
there never would be a union in Respondent 's establishment. But he denied making the state-
ment that he had sat in on management conferences where It had been decided to close down
if a union came in. On cross -examination O'Kelly at first testified that he could recall no
conversation with Keith concerning another Mills-Morris plant that was closed down--nor
would he deny having had such conversation . Then he did deny it, saying "not with Roy Keith.
He may have heard me talk with somebody some time that Mills -Morris sold out some
business before. " I credit Keith. O'Kelly did not deny the major premise of his comments
that there would never be a union at Mills -Morris. If he made that statement , which being
undenied I find he did , it would normally be expected that he would follow it with some kind
of supporting argument . This, plus his equivocation regarding the conversation with Keith
about the closing of another Mills-Morris establishment puts his testimony in a less favor-
able light than Keith 's. Accordingly , I find that he did make the statement that Respondent
would close its establishment if the Union came in and that such statement was coercive
within the meaning of Section 8 (a) (1) of the Act.
C. The discrimination against Hamblin
1. Knowledge of Hamblin 's union activity
As will be recalled , it was on the night of April 20 that Hamblin and the four other tech-
nicians joined the Union. The following morning , according to Keith's undenied and credited
MILLS-MORRIS COMPANY 1251
testimony, he asked Charley Hughes whom he knew only as a clerk in the office, if he was
going to join the Union . Hughes asked "what union , what are you talking about? " Keith told
him the Union had 100 percent membership in the television shop. "No kidding" replied
Hughes adding as he left "Well, good luck with your union."
According to Keith's testimony the Union was a general subject of conversation in the shop
all that day . In addition to his talking to Hughes I find, on the basis of his undenied testimony,
that Keith also talked about the Union that day with Tom Sawyer, C. P. Lambert, and Don
Richardson . The conversation with Sawyer and Richardson took place after lunch at 2 p. m.
at the corner of the appliance service department. It apparently was mainly between Sawyer
and Keith with Richardson and others listening.8, It was a general conversation in which it
was brought out that the Union had 100 percent membership in the service department and
in which the eligibility of other employees was discussed.
On the same day (April 21), according to Sales Manager McIntyre 's testimony , having
learned about the Union from Sawyer at McIntyre 's home the night before , the latter reported
what he had learned to Lichterman. 9Lichterman's reaction was one of unconcern, "Well,
you haven 't been here very long . We have been hearing rumors of this sort off and on for
quite a few years. Just don't pay any attention to it.... Just don't worry about it. That
crops up every now and then ." Lichterman confirmed Mcintyre 's impression -as to his
reaction to the information about the Union testifying that he was "not a bit" concerned.
Significantly Lichterman testified on direct examination that he could not "remember actually
whether 1Hamblitl] was mentioned or not at that time."
2. Concluding findings as to knowledge
In these cases it is usually disagreeable and difficult to reach a convincing conclusion as
to whether or not an employer actually had knowledge of a discriminatee's union activity
before or at the time the alleged discrimination occurred . This case is no less disagreeable
and is hardly less difficult than the usual case to dispose of in this respect. Nevertheless
for the following reasons , I conclude and find that Respondent was aware of Hamblin 's union
activity at the time he was discharged.
It is admitted that McIntyre and Lichterman had knowledge of some kind of union activity
involving their plant the day before Hamblin's discharge . Considering the small size and
specialized type of the unit which was the subject of the Union's initial efforts, it is difficult
to see how McIntyre, getting any information at all as he admitted he did, could have avoided
learning some of the definite details. Equally questionable is Lichterman 's claim of utter
unconcern about the Union at that time --particularly in view of his lengthy , vigorous, and
largely illegal stand against the Union in his meeting with the employees on April 27.
On this same day (April 21 ) moreover Richardson , at that time in charge of the appliance
service departme t , whom I find was a supervisor . 10 was informed that all the employees
of the radio and television shop, which would include Hamblin, had joined the Union.
It was late in the afternoon on April 22 that Hamblin was discharged , about 30 seconds,
according to Keith's testimony , after Lichterman and Stiverson went outside to examine
Lichterman 's car radio . On the way back in, it will be recalled , Lichterman interrogated
Stiverson as to who had joined the Union. Upon being Informed that it was everyone in the
service department including Stiverson and Gann, Lichterman indicated surprise not as to
8Neither Hughes nor Richardson, both of whom the General Counsel contends are super-
visors, testified. Their supervisory status will be discussed in concluding findings below.
9 From Mcintyre's testimony it would appear that what he learned was little more than the
fact that a union was in the picture in some manner. On cross-examination he denied receiving
any information about what department or which employees were involved in the union cam-
paign or its extent.
10 According to Lichterman's testimony, Richardson (1) "routed" the people in the depart-
ment "to jobs," (2) did the buying for the department, (3) had the function of hiring "in a
limited way" his recommendations onhiringand firingwere "given particular consideration,"
(4) directed the manner in which the employees did the work, (5) although spending about
25 to 30 percent of his time on the same work as those under him, was paid a higher rate,
(6) was considered by management "a boss in a limited way." and (7) did not vote in the
Board election ultimately held at the plant. Since it is unessential to the disposition of the
case. I make no finding as to the status of Hughes and, of course ,. base no findings on evidence
involving him.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the three service employees involved but only as to Steverson and Gann whose work was
essentially in the parts department and who Lichterman apparently thought were ineligible for
union membership. U Having already learned the day before that organizational activity had
begun among the employees, elicitation of that fact from Stiverson, of course, would have
evoked no surprise on Lichterman's part. The significance of Lichterman's attitude I conclude,
as suggested by the General Counsel, is that Lichterman knew the Union had claimed some
employees but that he thought it was confining its membership to the three technicians of
the service department, which would include Hamblin.
3. The discharge and defense thereto
At the time of his discharge in the late afternoon of April 22, Hamblin had worked for
Respondent about 6 months. In his duties Hamblin spent about two-thirds of his time on radio
repair work, made some TV service calls, and helped in the parts department. He had had
about 81 years' experience in radio and TV repair work and had completed a full course in
radio from the National Radio Institute. Prior to his employment by Respondent he had been
employed by the Dixie Appliance Company in Memphis for about 5 months as a radio and TV
technician. Before that he had been connected with the Roberson Electric Supply Company in
Pontotoc, Mississippi, for about 7 years. During that period about half of his time was spent
as an employee and half as part owner, all of which time he performed the duties of a radio
and TV technician--most of the work, however, being with radios.
On direct examination McIntyre testified that Hamlin was discharged for "slow work,
poor work and having no loyalty to Mills-Morris and the products he was serving." On
cross-examination, McIntyre assigned only slowness and disloyalty as the reasons for the
discharge. Hamblm's immediate supervisor, Milton Allen, testified on direct examination as
to "kickbacks" on Hamblin's work, but was unable on cross-examination to cite one such
example. The testimony of Katz of Dixie Appliance, called by the Respondent, and of Rober -
son, called by the General Counsel, for the most part would seem to amount to self-neutral-
izing conclusions. Of the two, nevertheless, for reasons which I believe are apparent on the
face of the record, I would place more credence in Roberson's testimony.
Stiverson, on the stand as Respondent's witness, testified that the work Hamblin did was
good but that "he was mighty slow." u It was stipulated that if Keith and Gullick were re-
called to the stand by the General Counsel in rebuttal they would have testified that Hamblin's
work was a little slower than average but that he did a careful "good" job which resulted in
a lower than average percentage of "kickbacks" or complaints about his work, and that he
was frequently called upon to "fix the hard jobs."
The record shows, and I find, that Hamblin was a competent although somewhat slower
than average workman and that notwithstanding McIntyre's attempt to brand the quality of
Hamblin's work as poor 13 and Allen's to discredit it with customer complaints about it, I
find that such was not the case nor would it appear that Respondent seriously raises poor
quality of work as a defense regarding Hamblin's discharge.
According to Hamblin's testimony, on April 22 at about 11:30, Allen first told him about a
meeting of employees in Lichterman's office at 5 p. in. He was reminded of the meeting again
by Allen that afternoon about 3:20. Thereafter, that afternoon. Allen came back to Hamblin's
bench with the information that Respondent was "going to have to let" him go and told him to
go talk to McIntyre. 14 Hamblin went to see McIntyre but returned to his bench when he found
McIntyre talking to some people. After a lapse of a few minutes Allen came up with Hamblin's
check telling Hamblin that his discharge was for economy reasons.
ii Lichterman's surprise may have been solely because of Stiverson's having joined the
Union and not grounded on eligibility but on a sense of ingratitude by Stiverson for considera-
tion given him by Respondent when he was ill.
Ti It is apparent in the record that Stiverson's evaluation of radio and TV technicians in the
Memphis area as a whole and of the current or past employees of Respondent was not very
high. Conversely, he considered himself better than average. Stiverson's rate was 1.20 per
hour while Hamblin's was 1.25.
19Mclntyre was not a radio or TV technician. On cross he testified he had no customer
complaints about Hamblin's work.
14Hamblin's testimony on this was vague: Allen "said something about Mr. McIntyre.
I didn't quite understand all that he said...."
MILLS-MORRIS COMPANY 1253
The evidence is undisputed that about 3 weeks before his discharge Hamblin informed both
Allen and McIntyre about a job offer paymgmore money but requiring longer hours. On direct
examination Hamblin testified that he asked Allen if there was any prospect of a layoff, ss and
was assured there was none. On cross-examination Hamblin admitted asking Allen for a
raise at this time and being referred by Allen to Lichterman. Not being able to see Lichter-
man at the time, Hamblin made apleato McIntyre for intercession on his behalf with Lichter-
man. He also told McIntyre about his job offer. According to Hamblin, McIntyre told him he
would mention Hamblm's request to Lichterman.
On cross-examination while not denying that McIntyre had told him to take the other job
Hamblin's testimony was that he did not think McIntyre told him that. He did deny, however,
that McIntyre told him his work was too slow and that he was not worth what Respondent
was paying him. That, of course, is what McIntyre testified. The importance of the resolu-
tion of this matter is whether or not this incident resulted in any statements by Respondent
which could be interpreted as a warning or criticism to Hamblin regarding his work. Signifi-
cant to the resolution of this conflict is McIntyre's further testimony that about a week after
his conversation with Hamblin the latter asked him, "Have you done anything about my
raise? " This testimony is so consistent with Hamblin's version and is so incongruous with
McIntyre's that I am inclined to credit Hamblin's version and find that McIntyre did not
criticize Hamblin for his work. The most the record shows along this line is that either
directly or by inference, Hamblin learned or should have become aware that Respondent was
unwilling to increase his rate in order to retain his services. In making the foregoing con-
clusions and findings I do not wish to be understood as concluding that Respondent's position
regarding Hamblin's slow performance and its dissatisfaction therewith is entirely without
merit. I believe Respondent was concerned about it, as would be any employer who is interested
in getting the most for his labor dollar; but I do not believe nor do I find that the evidence
establishes that its concern was such as to have caused it to take the initiative in improving
the situation. is
The keystone of Respondent's defense as to Hamblin's discharge is that Hamblin had
recommended to McIntyre's father a TV set other than Motorola, the only brand handled
by Respondent, and that as soon as Lichterman learned of that he immediately and for that
reason ordered Hamblin's discharge. The evidence shows that sometime in April, Hamblin
made a TV service call to the home of G. S. McIntyre, Sr., father of Respondent's sales
manager. During the call McIntyre, Sr., asked Hamblin's opinion as to what make TV was
the best buy. According to McIntyre, Sr.'s, testimony Hamblin replied, "Emerson." McIntyre
said, "I expected you to say Motorola." Hamblin replied, "Well, you asked me what I thought
was the best and I told you." McIntyre further testified that Hamblin told him that according
to "some Consumer's Index" Emerson had been rated the best.
Hamblin in rebuttal denied that he told McIntyre, Sr., that Emerson was the best set to buy.
According to Hamblin's testimony, in a general conversation with McIntyre, Sr., about TV.
Hamblin asked McIntyre if he had seen the newer models of Emerson, adding that Emerson
had "made as much improvement as anybody I have seen yet, I believe, any set. Also the
Philco has unproved theirs some, too, and Admiral has improved theirs."
According to the testimony of McIntyre, Jr., on the night of April 21, he dropped in on his
father to see how the set was working and learned at that time what Hamblin had said about
the Emerson TV. The next day about 4 p. m. McIntyre told Lichterman what he had learned
from his father, summarizing the story with the comment "This really caps it with
Hamblin." iT Lichterman immediately called in Allen telling him to "Fire Hamblin and
b He explained this concern about a layoff as being motivated by the knowledge that service
work generally falls off in the summer--a fact I find to be supported by the record although
there is no showing that seasonal layoffs had ever occurred in Respondent's plant.
i6 Allen testified that by subcontracting the radio repair work since Hamblin's discharge
Respondent has lowered its costs to less than one-third of what they were on that work when
Hamblin was doing it. This testimony is meaningless in view of Allen's admission on cross-
examination that the cost figures he compared were gross figures upon which no attempt
was made to determine the unit costs for the periods in question.
rr Explaining what he meant by that statement McIntyre testified that they (presumably he
and Lichterman), at some unspecifiedtime had discussed Hamblin's "slowness of work and his
inability to keep up with it," which, coupled with his "not being loyal to the company... just
capped the whole works."
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fire him right now and I don't mean five minutes." Allen asked what reason to give. Lichter-
man said, "Tell him it is an economy move. Tell him anything but tell him he is fired" then
relented somewhat instructing Allen to tell him only that it was an economy move, indicating
that there was "no need to be unpleasant about it."
Lichterman's testimony corroborates McIntyre's but adds thatwhenhe learned of Hamblin's
conversation with McIntyre, Sr., he "saw three different colors of red." He also testified
that it was after receiving this information and as a result of it that he called the 5 p. m.
meeting that day.
This testimony presents a conflict with the General Counsel's since the latter's evidence
would show that the meeting had been announced before Lichterman learned of Hamblin's
Emerson remarks and, as shown by Hamblin's inclusion in the announcement of it, before his
discharge. The resolution of this conflict is important but being to a large extent a subjective
matter can hardly be discussed with complete analytical satisfaction. What took place at the
meeting, however, can be so discussed and, bearing in mind Lichterman's testimony that it
was Hamblin's conduct which motivated his calling the meeting, is of importance in either
supporting or detracting from the good faith of Respondent's position.
The meeting apparently was attended by practically the whole plant. The General Counsel's
testimony is was substantially that three subjects were covered by Lichterman who did all
the talking--(1) loyalty to the Company, (2) the past, present, and future of the Company, and
(3) customer relations. Lichterman started his remarks with a joke directed at a latecomer
to the meeting which evoked laughter from the assemblage. 19 He then commented that "I
very seldom get mad, but when I do I really boil and I am boiling now." Despite this comment
he settled into his dissertation in a perceptibly unruffled vein. 20 With respect to the company
prospects Lichterman pointed out how the business was growing and that if the parts depart-
ment continued to grow to 18 employees Gann would be in charge and would draw a salary
commensurate with his position.?i Regarding loyalty to the Company, Lichterman said, "If
you can't get along with people here, if you don't like your work or you think you are not
getting enough money, you can quit and go elsewhere. You ought to quit."
Nothing in the Respondent's testimony about this meeting contraverts the evidence offered
by the General Counsel. In fact, McIntyre's testimony corroborates the General Counsel's.
He confirmed the comments about the growth of the business and its significance to Gann's
position in the Company; he also corroborated the suggestion that the employees who did not
like their work should quit. On direct examination McIntyre testified that he was sure whether
Lichterman had made any remarks about loyalty to the Company. On cross-examination he
testified that his memory was "a little vague" as to Lichterman's remarks on loyalty but
to the best of his recollection Lichterman had said he expected "loyalty from everyone to
the company." However, he did not recall that Lichterman had elaborated on that remark or
explained what he meant thereby. Neither the testimony of Allen nor of Lichterman himself
adds any detail to the above. Indeed their testimony about the matter was quite brief and in the
most general terms --particularly regarding any remarks about loyalty.tt
Analysis of the foregoing evidence, I believe, raises considerable question (1) as to whether
Hamblin's remarks to McIntyre, Sr., actually were discussed at that time and (2) if they were
as to the importance, if any, attached by Respondent to them. Those remarks, allegedly having
been so aggravating to Lichterman as to have caused him to see "three different colors of
red" and to call his employees together ostensibly to listen to his comments thereon, strangely
enough merited not a mention. The only evidence which appears regarding Lichterman's
attitude about employee loyalty is bound up with employee acceptance of their wages and
working conditions--matters directly germane to the employer-employee relationship (as
Is Based largely on Keith's testimony but Gann also testified about the meeting substantially
as Keith did.
i9As described by McIntyre, the joke involved a man who "was so mad he couldn't hear."
Lichterman's remarks, infra, about his being angry may have been for the purpose of making
his anecdote more pungent.
20 This is born out by McIntyre's testimony that his reaction was that Lichterman "was
very composed" in his talk for a man who claimed to be as angry as Lichterman claimed to be.
21 Gann testified that this was the first intimation that he had ever had that he was in line for
such a position.
22 Lichterman's only testimony on the subject of loyalty was that he "talked ... about
loyalty to Mills-Morris ... generally." To the same effect Allen: ".. , he talked about
loyalty to the company...."
MILLS -MORRIS COMPANY 1255
distinguished from the type of thing attributed to Hamblin) and also germane to the question
of unionization--particularly when a union is trying to organize the employees involved. It
would appear, and I find, that it was in connection with his employees' attitude regarding the
Union that Lichterman's remarks about loyalty to Mills-Morris were made in that meeting.
That he was Inclined to consider any acceptance of union representation on the part of his
employees as disloyalty to Respondent is amply demonstrated by his threat to the union
adherents a week later that their union membership would result in his attributing disloyalty
to them in the event his references were ever sought by prospective employers.
In view of the foregoing, and because Hamblin's testimony is undenied that he was told by
Allen twice that day about the 5 p. m. meeting, I conclude and find that the meeting had been
arranged prior to the time and with different motives than testified to by Lichterman. Such
being the case, it seems to me, the major premise of Respondent's defense as to Hamblin's
discharge--namely his comments to McIntyre, Sr.--falls. At best, then, this was merely
the "occasion of but not the reason for" Hamblin's discharge. Semet-Solvoy Division. Allied
Chemical & Dye Corporation, 99 NLRB 222.
In connection with and bearing on this situation was Respondent's seemingly strange
reluctance to mention the matter not only to the other employees but to Hamblin himself.
In spite of Lichterman's ire and McIntyre's sense of ultimate concern about it, neither one
was willing to confront Hamblin with his wrong doing or give him a chance to explain--
Lichterman demonstrating a gentleness incongruous with his emotional reaction to it and
McIntyre inexplicably refusing to discuss it with Hamblin at the latter's request. 23
My reactions to and conclusions about the effect of Hamblin's low production have been
noted. Significant in this connection is Respondent's admitted failure to complain to him or
warn him about it. u This failure becomes doubly suspect when considered in the light of
Stiverson's undenied, credited testimony as Respondent's witness that two predecessors in
Hamblin's job, William Bell and Roy Dean, had been repeatedly criticized officially and
specifically on their work and threatened with discharge unless improvement was shown.
There remains one other facet of the evidence to discuss. Gann testified that the morning
after Hamblin's discharge Allen came back to the service department and asked Gann if he
knew why Hamblin had been let out. Gann replied that he did not know and asked the reason.
Allen replied that it was because Hamblin had joined the Union. Gann further testified that
he could see that Allen did not know "they" had joined the Union.
Keith's testimony, corroborated by Gullick, was that having been informed by Gann of
Allen's disclosure, Gullick and Keith went to Allen for the purpose of telling him they also
had joined the Union.t5 There they first asked Allen why Hamblin had been discharged. Allen
informed them that Respondent had "been intending to fire him for a long time and the union
business brought it to a head." They then Informed Allen of their union membership.
In his testimony Allen denied telling anyone that Hamblin had been discharged because
of union activity but did admit that he was informed by the union adherents on the morning
in question of their union membership.
I deem it unnecessary to resolve this conflict since the preponderance of the evidence,
reflected by the foregoing findings and conclusions Y6 in my opinion supports the allegation
of the complaint that Hamblin was discharged because of his union activity. Nor do I attach
any significance to the testimony of the General Counsel's witnesses as to their irrelevant
assumption that Allen did not know they had joined the Union. 27 While the reasons assigned
isHamblin called McIntyre at his home the night of the discharge and asked why he had
been discharged; McIntyre refused to discuss the matter.
tAlleen's testimony shows no specific criticism or warnings on his part. The evidence
shows that Allen on occasion would prod Hamblin to get the work out as fast as he could
bet never directly told him his work was too slow. Even though this might be considered as
criticism, the disparity between this treadment and the treatment of Hamblin's predecessors
is obvious. McIntyre made a similar admission on cross-examination but qualified it by
citing his discredited comments to Hamblin regarding the latter's request for a raise.
Cf. Blue Bell, Inc., 107 NLRB 514.
25 At this point it was their concensus that Allen did not know they were in the Union and they
delaided to tell him According to Keith's undenied testimony they told Allen".. , we thought
we better tell you before you get yourself into any more trouble."
26Another conclusion not heretofore noted is the timing of Hamblin's discharge coming
as it did so soon after the union campaign became known to Respondent. Blue Bell, Inc., supra
27My position would be the same no matter how I resolved the conflict.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent for Hamblin 's discharge may have been cause to discharge him, I find that
they were not the real reasons but were mere pretexts relied upon to conceal the true anti-
union motive , Rugcrofters of Puerto Rico , Inc., 107 NLRB 256, which was discriminatory
within the meaning of Section 8 (a) (3) of the Act.
Respondent contends that because there is no evidence that Hamblin 's discharge discouraged
union membership or activity on the part of the employees , it cannot be found that Respondent
has violated Section 8 (a) (3) of the Act. The Board as sustained by courts has consistently
held otherwise. Humble Oil & Refining Co . v. N. L. R. B. 113 F. 2d 85 (C. A. 5); Joy Silk
Mills , Inc. v. N. L. R. B., 185 F . 2d 732 (C. A., D. C.), cert. denied 341 U. S. 914; Gavnor
News Company , Inc., 93 NLRB 299, enfd. 197 F . 2d 719 (C. A. 2), cert. granted March 9, 1953.
Nor is the finding of discrimination by Respondent against Hamblin prevented by the fact
that Hamblin was not the union leader among the employees . Lakeside Packing Company, 104
NLRB 902; W. C. Nabors Company 89 NLRB 538, enfd. 196 F. 2d 272 (C. A. 5).
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection with
the operations of the Respondent described 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.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative of Sec-
tion 8 (a) (1) and (3) of the Act, it will be recommended that the Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily discharged Robert Hamblin. It will
be recommended that Respondent offer Robert Hamblin immediate and full reinstatement to
his former or a substantially equivalent position without prejudice to his seniority and other
rights and privileges, The Chase National Bank of the City of New York, San Juan, Puerto
Rico Branch, 65 NLRB 827, and make him while for any loss of pay he may have suffered
by payment of a sum of money equal to that which he normally would have earned as wages
from the date of his discriminatory discharge to the date of the Respondent's offer of rein-
statement less his net earnings during said period. Crossett Lumber Company, 8 NLRB 440,
497-8. Back pay in each case shall be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289. The Respondent, upon request, shall
make available to the Board, payroll and other records to facilitate the determination of the
amounts due.
The character and scope of the unfair labor practices engaged in indicate an intent to defeat
self-organization of employees and goes to the heart of the Act. It will be recommended that
the Respondent cease and desist from such acts and from in any other manner interfering
with, coercing, or restraining its employees in the exercise by them of the right to engage
in concerted activities for the purpose of mutual aid or protection guaranteed them in Section
7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Mills -Morris Company, is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. By discharging Robert Hamblin the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of rights
guaranteed in 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.
4. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]