Moore Dry Kiln Co.

National Labor Relations Board - Board Decisions

Oct 20, 1961

133 N.L.R.B. 1256 (N.L.R.B. 1961)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore Dry Kiln Company and District 50, United Mine Work-
ers of America. Cases Nos. 19-RC-808 and 12-CA-1474. Octo-
ber 20, 1961
DECISION AND ORDER
On March 30, 1961, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report together with a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and
Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, the brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
The Board adopts the recommendations of the Trial Examiner
with the modification of provision 2(d) to read: "Notify the Regional
Director for the Twelfth Region, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply
herewith 2
IT IS I'URTHER ORDERED that the election in Case No. 12-RC-808 held
on March 18, 1960, be, and it hereby is, set aside, and that Case No.
12-RC-808 be remanded to the Regional Director for the Twelfth
Region for the purpose of conducting a new election at such time as
he deems that circumstances permit the free choice of a bargaining
agent.'
1 We deny the Respondent 's motion to reopen the record to adduce evidence concerning
further layoffs which were made after the close of the hearing, for the reason that such
layoffs would not be material to the allegations of the complaint and could not affect our
conclusion herein
2In the notice attached to the Intermediate Report as an appendix , the words "Decision
and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner" In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing
an Order"
s The new election shall be conducted in the unit of production and maintenance em-
ployees as agreed upon by the parties in Case No. 12-RC-808 who were employed during
the payroll period immediately preceding the date of the issuance of notice of election
133 NLRB No. 110.
MOORE DRY KILN COMPANY 1257
INTERMEDIATE REPORT
STATEMENT OF. THE CASE
On January 25, 1960, District 50, United Mine Workers of America, herein called
the Union, filed with the National Labor Relations Board, herein called the Board,
a petition in Case No. 12-RC-808 for certification of representatives for the em-
ployees in a specified unit at the Jacksonville, Florida, plant of Moore Dry Kiln
Company, herein called the Respondent. On March 18, 1960, a consent election
(agreed to on February 12) was conducted in which 108 ballots were cast, 46 for
and 45 against the Union with 17 ballots being challenged. On March 25, 1960,
the Union filed objections to the election. On April 18, 1960, the Regional Director
issued his report on the objections. This report recommended that none of the
challenged ballots be counted, that the election be set aside, and that one of the
two objections made by the Union be sustained. On April 26, 1960, Respondent
filed with the Board its exception to the Regional Director's report. On June 16,
1960, the Board issued its Decision, Direction, and Order in the "R" case wherein
it was ordered that 2 of 17 challenged ballots be opened and if the revised tally
resulted in the Union's not receiving a majority of the ballots cast then a hearing
was to be held by the Regional Director to resolve the material and substantial
issues raised in connection with the Umon's objection No. 2.1 On June 22, 1960,
Respondent filed its motion to reconsider and amend order of the Board dated June
16, 1960, and to stay proceedings herein. On June 24, 1960, the 2 challenged ballots
were opened and showed a revised tally of 47 against the Union and 46 against the
Company.
Previously, on May 23, 1960, the Union filed with the Board unfair labor practice
charges against Respondent. Upon these charges the General Counsel of the Board,
by the Regional Director for the Twelfth Region, issued a complaint against Re-
spondent dated July 8, 1960, alleging in substance that Respondent had engaged
in unfair labor practices in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (61 Stat. 136), herein called the Act, by dis-
criminating against various named employees 2 because of their activities in behalf
of and membership in the Union or for engaging in other concerted activity for
the purpose of collective bargaining or other mutual aid or protection, and by
engaging in various specified acts of interference, restraint, and coercion against its
employees in connection with their union activities. On July 14, 1960, the Board
issued an order directing that the hearing on the Union's objection to the election
be heard by a Trial Examiner. On July 18 the Respondent filed its answer denying
the commission of unfair labor practices. On July 28 the Regional Director issued
an order consolidating the complaint case with the representation proceeding and
set August 29, 1960, as the date for the consolidated hearing. The matter was heard
by Trial Examiner Eugene E. Dixon at Jacksonville, Florida, from that date through
September 10, 1960.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
The Respondent is, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State of Florida. At all
times material herein, Respondent has been engaged in the manufacture of lumber
drying and handling equipment, with its principal office and place of business at
Jacksonville, Florida. During the 12 months preceding the issuance of the complaint
Respondent manufactured, sold, and shipped from its Florida location finished
products valued in excess of $50,000 to points outside the State of Florida. I find,
and Respondent does not deny, that Respondent is and has been at all times material
'The Union's objection No 2 states: "(2) Approximately 2 or 3 weeks prior to the
election the Company's president, two vice presidents, plant manager, plant superintendent
and supervisors were continuously contacting their employees in the plant in regard to
their union activity and promising many benefits if they vote against the Union "
2 Named as having been discriminated against by being terminated from their employ-
ment by Respondent on April 8, 1960, were: William F Brunson, William H Burns,
Ernest C. DeWitte, W. A Ellison, Joe Tobbler, J. P. Williams, James H -Dunlop, Wyatt
Hopkins, Bobby David McDuffie, Alvin Southwood, Melvin Ruttan, D. D Moad, H L.
Roberson, J. C Hurst, W. D. Palmer, It. J. Freeman , L D. Pittman, George Howard,
and X . It. Henry.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein , an employer engaged in commerce within the meaning of Section 2(6) and
(7) of the Act. i
H. THE LABOR ORGANIZATION
District 50, United Mine Workers of America is, and at all times material herein
has been, a labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
Introduction
In January 1960, the Union started an organizing campaign among Respondent's
Jacksonville, Florida, employees, who numbered about 100, in a bargaining unit
of production and maintenance workers. This was the first experience of Respond-
ent with a union campaign. However, essentially from the beginning Respondent
was represented and advised by counsel. On January 29, having had inquiries from
a few employees as to how they might withdraw from the Union, Respondent advised
all of its employees by individual letters how they could get their union cards back
or have them "considered void."
Beginning about 2 or 3 weeks prior to and continuing up to a day or two before
a scheduled Board election on March 18 , Respondent put on an intensive campaign
of individual interviews with the employees motivated by and directed toward the
coming election . These interviews, conducted at the employees' work station or
in the work area generally, were engaged in by numerous supervisors and prac-
tically all of top management including Respondent's president, E. M. Pope, two
vice presidents, C. J. (Mike) Williams and Pat Williams, Jr., and production man-
ager, H. B. Broome . What was said in these interviews is in issue as to whether
or not Respondent engaged in unfair labor practices within the meaning of Section
8(a) (1) of the Act and whether or not the election, in which the Union was rejected
by a vote of 47 to 46, should be set aside.
Some 3 weeks after the election was held, 19 employees were terminated.3 The
General Counsel alleges that these terminations were discriminatory within the
meaning of Section 8(a)(3) of the Act. The Respondent contends they were moti-
vated solely by economic considerations."
Interference, Restraint, and Coercion
Perry R. Bozeman, an employee who was one of the leading figures in the union
campaign and who acted as a union observer at the election , testified as to various
conversations with different supervisors within a period of a week or two before the
election , as follows:
(1) About 2 weeks before the election President Pope stopped him as he was
leaving the toolroom and said, "Wait a minute, I want to talk to you." As they
were walking to the back end of the shop, Pope asked him "about being mixed up
with the Union." Pope also asked him what he thought he could get with the
Union that he could not get without the Union. Bozeman told him some form of
seniority rights. He replied to Bozeman, "No. I won't sign a contract with seniority
rights in it." Pope went on to tell Bozeman that he was disappointed in the latter's
"being mixed up or being involved in the Union." He also told Bozeman that "they
had better things planned for" him. His reply to Pope was that he was the same
fellow now that he had been 6 months ago as far as his working ability was concerned
and that it was not going to change "one bit in the world." Pope made the addi-
tional comment that "if the Union came in he was afraid that a bunch of people
was going to get hurt."
On cross-examination Bozeman testified that Pope had said that "he was definitely
for seniority in a way . but he was against straight seniority rights on one ac-
count that you get loaded up with dead wood and get rid of them and another ac-
count was that the Company believed in taking care of its older employees and that
the older employees that had been there down through the years would be taken care
of." Bozeman admitted that Pope said something about taking into consideration
other qualifications than length of service in connection with seniority.
(2) About 3 days before the election Bozeman had a conversation with Vice
President Mike Williams. Williams said that if they had to get a union he was very
disappointed in the one the employees were interested in. He told Bozeman about
the United Mine Workers striking against the Government and being fined for it.
8-I use the word "terminated" only In sense that the men did not continue to work from
the date of the Respondent 's action Whether it be called a "layoff" as Respondent con-
tends is immaterial
MOORE DRY KILN COMPANY 1259
He also testified that Williams had asked if there was any chance of his changing
his vote or his mind.
(3) In a conversation with Vice President Pat Williams a day or two before the
election , Williams said he did not want him to "think there was anything going on
or that there would be any hard feelings about it, that he appreciated letting him
-know how we get along." He further said , "I know I 'm just wasting my time. I'm
going to plant my seed on more fertile soil ." They also discussed the firing of one
Jack Rucks. He told Williams that he "didn't like the way it was done and nobody
in the shop didn 't like the-way it was done." Williams admitted "that it wasn't
handled exactly correct and that if they got this thing whipped there would be some
changes made in the shop about such things as that." They were talking about the
Union at the time.
Bozeman also testified that about 2 weeks before the election he and Jimmy Dobbs
were reprimanded by their superiors for "talking too much out in the plant" and
warned that "talking on company time" would have to be "strictly" about business.
Bozeman admitted that he and Dobbs had "had a campaign on to get everybody
they could" into the Union . About this time, according to Bozeman's further testi-
mony, the employees were required to get permission to leave if they wanted to get
off to run an errand . Before this they simply told their immediate supervisor they
were going. Now they had to get Broome's prior consent . In either case, they
punched the timeclock recording their absence.
William F. Brunson , another employee called by the General Counsel , testified
that he attended all the union meetings . After every meeting Clarence Higdon, his
foreman , would ask him about the meeting, who was there , how many from his
department. He told Higdon he would rather not say. However, he did reply in the
affirmative to Higdon 's inquiry about his own signing of a union card . Higdon also
told him about 2 weeks before the election that if he voted for the Union he would
lose\his job. Brunson also testified on direct examination that Mike Williams asked
him it he had signed a union card . He replied , "Yes." From his cross-examination
it would appear that it was Pat Williams he had talked to and this was several times
within 2 weeks of the election . He testified , "The only thing I can recall him saying
is something about my work had been satisfactory and as far as he knew the com-
pany was still going good and that I would have my job there." 4 Williams also
told him he would have his job if the Union came in or not 5-that he would give
Brunson a "letter" stating that he would have his job if he voted for or against the
Union. On redirect examination Brunson augmented his testimony about his con-
versation with Pat Williams showing that Pat and he started talking about Brunson's
brother and family. Williams then asked him what he thought about the Union. He
replied he did not know; that he had never worked under one . Pat said he did not
see where it could help him any and Brunson agreed saying he did not think it was
a very good idea.
A couple of days later, according to Brunson 's further direct testimony, Mike
-Williams also asked him how he liked his work and how it was progressing. Mike
further asked him if he thought the Union was going to help him . His reply was
that he did not see where it could. Elsewhere in his testimony Brunson indicated
that he told Pat he was neutral, that he "didn 't want to go either way," explaining
on the stand that he "was just trying to tell the man [he] didn 't want to talk about
it. But so long as he was talking about family affairs that was all right." He fur-
ther explained , "I was more or less just talking to him where I could get him off my
back where I could go ahead and go back to work." Sometime before the election
Brunson told both Pat and Mike Williams and Pope that he had changed his mind
about the Union , that he could not see where it would do him much good and "more
or less told them" he was through with it.6
E. C. DeWitte , Sr., an employee of some 15 years' tenure, testified at the call of
the General Counsel . He attended all the union meetings but one. In the 2 or 3
weeks before the election, he had several conversations with Pope and Pat and
Mike Williams. Pope, on at least two occasions, talked to him about the Company's
profit-sharing plan and asked him what he thought about it. He replied he thought
it would be a good thing if it turned out good and Pope said he thought it would be
good. Both the Williamses told him, "You know how we stand , I hope you will
think this thing over and get on the right track and sleep over it and all that kind
of stuff." One of -the Williamses told him that there would not be any layoff on
account of the Union . They also told him that they were "going to take care of the
old men regardless what happened ." In a conversation about the union with
4 Brunson was among those laid off on April 8 and named as a discriminatee
5 Elsewhere in his cross -examination he attributes a similar statement to Broome.
He later denied that he had given Pope such information
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Broome 2 or 3 weeks before the election , Broome also said that "they were going
to look out for the old men" and that he should not worry about his job.
Pat Williams complimented DeWitte about his son, telling him that his son was
doing his work well and "would make him a good man ." When DeWitte was asked
on direct examination if any of them had asked him how he felt about the Union he
answered, "Oh, they didn't come right out and ask me just how I felt about it."
Notwithstanding this answer, he later testified that Pope and both the Williamses
had asked him if he thought he would gain anything by voting for the Union. His
reply was that sometimes it paid to try something different.
Within the period of 10 days to 2 weeks before the election, according to the testi-
mony of Ernest Clifford DeWitte, Jr., another employee called as a witness by the
General Counsel, Production Manager Broome, Pope, Pat Williams, and Mike
Williams all talked to him about the union campaign. In his conversation with
Broome (which apparently started out with talk about their families), the latter
asked DeWitte what he thought could be gained by the Union. DeWitte replied
that he was not positive. They talked a little bit about the benefits of the Company,
a little bit about the profit-sharing plan, and some about what a good job he had
done when he first started working for the Company. In this connection Broome
told him what a good company employee he would make for that Company or for
any other company.
As for any conversation with Pope about the Union, DeWitte testified that nothing
much was said about the Union at all.
Pat Williams talked to him twice. They talked about company benefits, about
their families. Pat told him that a man should make up his own mind which way
he wants to go and when he makes up his mind and believes that way and actually
has his mind made up to go that way, then that is the way he should go. Pat told
him to weigh the company facts and the union facts and the one that overwhelmed
the other should be the basis for his decision. He also told DeWitte that as far as
any layoff was concerned, as long as he did his job he would be able to keep it.
DeWitte also testified that either Pat or Mike Williams had told him that they
could possibly lose all their benefits and that there was not any way that the Union
could force the Company to give them more money. When asked by the General
Counsel if he recalled anyone ever asking him about how he felt about the Union,
his reply was that the only such thing he remembered was Broome asking him how
he got into the Union.
On cross-examination DeWitte admitted that Pat Williams may also have told
him that union activities would have nothing to do with his iob. He would not
deny that Williams said that to him. When asked on cross-examination for Broome's
exact words to him about how he got into the Union, he answered that he did not
remember Broome's asking him about getting into the Union. Then he testified that
Broome did ask how he got mixed up with it but could not remember the exact
words. Pressed further on the subject he testified that he did not know whether
Broome used the word "union" but had said something about thinking that DeWitte
knew better than to get mixed up with things like that.
DeWitte, Jr., worked for Respondent from August 25, 1959, until April 8, 1960,
when with the 18 others, he was alleged to have been discriminatorily terminated. He
was at the first union meeting which was held in January. Forty or fifty employees
attended this meeting including four of Respondent's supervisors?
Joe Tobbler was employed by Respondent from August 1959 to April 8, 1960, as
a laborer. During this period he worked 44 hours a week. He attended three union
meetings and signed a union card. Sometime within a week before the election
he had one conversation with each of the Williamses whom he testified he could not
tell apart.8 According to Tobbler the first conversation was not long and his recol-
lection of what was said was not clear. They talked mostly about the Company and
he was asked how he was getting along and how his foreman had treated him. In
the second conversation he was asked what he thought about the Union. He was
also asked if the Company was treating him all right and if any of the foremen
were bothering him. The Williams with whom this conversation took place told him
that as far as he could see Tobbler's work was satisfactory Williams then went on
to tell him that if they kept the Union out they would have a better iob. Williams
further said that if the Union came in there would be no more overtime. Further-
more if it rained there would be no work and when they had finished unloading
TAn allegation in the complaint that Respondent had engaged in surveillance was with-
drawn by the General Counsel during the hearing
8 The Williamses, both young men, are brothers close together in age with much re-
semblance in appearance.
MOORE DRY KILN COMPANY 1261
a boxcar if there were no more to unload that would be the end of the work until
more came in .9
J. P. Williamson , another of the General Counsel 's witnesses , started with
Respondent in October 1959 and was laid off April 8. Like Tobbler he was a
laborer who also had conversations about the Union with both Pat and Mike Williams
a week or two before the election . Mike asked him how he was feeling and told
him he wanted to talk to him a little bit . Mike asked him how he liked his job and
he said he liked it fine. Mike asked him what did he think about the Union and he
told Mike that he did not have much thoughts about it . They did not talk long.
Pat Williams went over essentially the same ground with him. He asked William-
son how he was doing and also asked him what he thought about the Union.
Williamson said , "I ain 't thought anything about it." Williams said "Well . . we're
not telling you how to vote. You vote how you want to." Williamson further
testified that it seemed to him that the first time one of the Williams boys (Pat)
talked to him about the union election "he did get in that we won 't have the work we
would be having."
Williamson attended three union meetings and signed a union card . He never
asked anybody in the Company how he could withdraw from the Union.
On cross-examination Williamson testified that Pat Williams told him , "We're
not telling you how to vote , you vote the way you want to." But he went on to add,
"If you vote for the Company it would mean so much to your job." Williams also
told him , however, that if he voted for the Company he would still have a job, he
would not be laid off , and gave him his card . Williams also said that regardless of
the union activities of any employee they would not interfere with their jobs. He
would still have a job.
James W. Dobbs, a current employee , had worked for Respondent since 1941.
He was with Bozeman when the latter went to the Union and got authorization cards.
He signed one of the cards but did not get others to sign. He and Bozeman "kind of
represented the Union and were the only two regular employes of Respondent to
appear for a scheduled representation hearing. Dobbs corroborated Bozeman's
testimony about the change in the procedure for getting personal leave and about
being restricted in their worktime conversation . He also testified that prior to the
election his wife had made a practice of coming to and into the plant with messages
involving his church members.10 After the election his foreman told him that his
wife would not be allowed to continue this. Within 30 days, however , they returned
to their previous practice.
Dobbs further testified as to various conversations with his supervisors about the
Union in the 2- or 3-week period prior to the election . Thus , in a conversation
with Pope that lasted about 45 minutes , the latter asked Dobbs what he believed the
Union could offer the employees that the Company could not do for them. They
discussed the various benefits of the Company and its profit -sharing plan. When
Dobbs told Pope he had been with the Company 19 years Pope commented that "it
was a pretty long time to get mixed up in something like that there."
On one occasion Mike Williams asked him if he would change his mind about the
election . He answered in the negative . On another occasion Mike asked him why
the boys wanted a union . He replied it was because so many of them were com-
plaining about being mistreated . Dobbs at first testified that Williams' comment at
this point was that he would see that the boys were treated so good or in a way
that they would not need a union . Then , admitting his poor recollection of the
matter , he summarized Williams' statement as meaning he would look into the
matter and if he found merit to the complaints he would see that they were treated
right in the future . When Dobbs denied any recollection of Williams qualifying
this promise with , the words "If the Union is voted out" he was shown his written
statement on the matter to refresh his recollection . He then testified that Mike told
him that "he'd check into it and see if the boys had been mistreated , and if the Union
was voted out, that he 'd see the boys were treated better ." On cross-examination he
testified that Williams had said that "the future would be better for the boys if they
did not get the Union."
On another occasion Pat Williams told him he wanted to discuss the coming elec-
tion with him. Pat told him that he "pretty well knew" where Dobbs stood ; that he
knew there was not much use in talking to Dobbs and laughingly said "he'd have to
sow some seed on more fertile ground."
9 The evidence shows that it had been the practice of the Company to work their laborers
regular hours ,and that if outside duties were interrupted by rain or if unloading duties
were finished before the end of the shift the laborers were put on other tasks inside the
plant such as cleaning up and janitor work.
10 Dobbs was the pastor of a church.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alvin Southwood was another laborer of Respondent 's who was laid off on April 8
after about a year 's employment . He attended two union meetings and signed a
union card . He never asked anyone how he could get out of the Union . According
to his testimony , within 2 weeks of the election both Pat and Mike Williams talked
to him about the Union . Mike asked him if he knew that the Union was trying to
get in and he replied that he was aware of it. Mike said he was not going to tell
him how to vote but that as long as they had been operating they had been without
a union . He started explaining the benefits of the Company to Southwood and
when he finished he told Southwood "that we have never had a union , and Mr. Pope
said we won't have no union ." Southwood told Williams that he did not know what
the Union was all about.
On cross-examination Southwood testified that when he told Williams that he did
not know what the Union was all about he had already attended a union meeting.
Admitting that what he told Williams in this respect was not true, he explained that
he did not think it was any of Williams ' business ( after all, Williams had told him
that it was his business the way he voted ) and he "was just telling him anything just
to get him off of [Southwood ]." He also admitted on cross-examination that Wil-
liams told him in this conversation that "Mr. Pope does not want a union."
In a conversation he had with his foreman , Johnson , about 2 weeks before the
election , Johnson asked him if he was voting for the Union . He said that he did not
know . Johnson started telling him some things about the benefits they were offering
in the Company and went on to say , "If the Union should come in, things would be
changed , it would take bread out of our mouth , your mouth and your children's
mouths. So just think about it ." Johnson said he would appreciate it if Southwood
voted against the Union . He also told Southwood that they were getting a lot of
time piddling around when work was slack but that that would be cut out if the
Union came in.
Admitting that in the 2- or 3 -week period preceding the election Respondent con-
ducted several hundred individual interviews with its employees centered on the
union campaign ," Respondent's witnesses nevertheless denied much of the foregoing
testimony.12
According to Respondent's witnesses , their purpose was to point out and explain its
various employee benefits , answering any questions that might arise and see that the
employees were apprised of their rights in the election to the end that all would
participate and vote according to their individual convictions . As explained by Pope,
most of the time he would tell his listeners "that the election was going to be on
March 18 and that was something that was important to them as well as important
to the Company.. " He would also tell them that as far as he could see "there
was nothing that the Union could get for them that they couldn 't get for themselves
without a union ." From that point the material covered in the interviews would vary
depending on what matters were raised by the employees.
As to specific interviews , Pope testified that in a conversation with Bozeman he
stated that as far as he knew there was nothing the Union could get for the men that
they could not get for themselves . Bozeman replied , "No, when the union comes in,
we'll have strict seniority rights that will protect my job." According to Pope, when
he later (the interview lasted 30 minutes to an hour ) asked Bozeman if he would
want strict seniority applied to his job , Bozeman answered in the negative . Accord-
ing to Pope 's further testimony Bozeman volunteered the information "that he was
very active in the union campaign " and that he thought Pope knew of it . Pope re-
plied that he "didn 't know it definitely " and "didn 't pay too much attention to
rumors." He added , however, that he was disappointed to hear about it because
Respondent "had discussed him at times in the past-and kind of had plans for his
future." When Bozeman commented that he was the same fellow he had been in the
past, Pope told him , "that in the past it had been the Company 's policy that how a
"For example , Mike Williams talked to 90 or 95 employees ; Pat Williams made it a
point to talk to each "at least one time " Pope talked to about 75 percent of them and
Johnson talked to about 19 out of some 29 under his supervision
12 Undenied on the record, however, were: (1) Pope's Interrogation of DeWitte. Jr, as
to what could be gained with a union ; ( 2) Broome's similar question to DeWitte, Jr.;
(3) Mike Williams ' question to Dobbs about changing his mind ; ( 4) Johnson 's threat
to Southwood that if the Union came in it would take bread out of his,and his children's
mouths ; ( 5) Pat Williams ' Interrogation of DeWitte , Sr, as to what he could gain by
voting for a union. (When interrogated specifically about this matter his answer was
that he could not recall asking DeWitte that question ) Also undenied in the record is
Brunson's testimony as to various interrogations about the union actiditles by his super-
visor, Clarence Higdon, and the latter's threat to him of loss of his job if he voted for
the Union . Higdon did not testify because of a heart condition.
MOORE DRY KILN COMPANY 1263
man performed his work and took care of his job is what controlled his advancement
in the future and that is what would control his advancement and his future and that
any union activities that he carried on would affect his future." -
On cross-examination Bozeman testified concerning his remark about seniority:
"I was trying to get off the hook, to tell you the truth, because I didn't want to stand
there and discuss the thing with Pope. So I gave him that for an answer. . . It's
a well known fact that you do get seniority rights." Notwithstanding what the
parties may have thought this evidence signifies regarding Pope's statement about not
signing a contract with seniority.13 I am convinced and find that it shows, contrary
to any expressed or implied denial by Pope, that Pope did pose to Bozeman the ques-
tion what he thought he could get with a union that he could not get without one.
I also find in accordance with Bozeman's testimony that Pope made the additional
comment that if the Union came in he was afraid a bunch of people were going to
get hurt.
Mike Williams denied asking Dobbs why the boys wanted a union or telling Dobbs
(on learning from him that they wanted a union because they were complaining of
mistreatment) that if the Union was voted out "he'd see that the boys were treated
better." However, Williams admitted telling at least three employees, ". . . when
the Company wins the election there are one or two things that we have come
across that could stand some improvement as far as the employee relations go." 14
In view of this admission among other reasons I credit Dobbs' testimony.
Both the Williamses denied making to Tobbler any of the statements he attributed
to them regarding the cutting of overtime or make work if the Union came in.
Regarding this matter Pat Williams testified that he told Tobbler that ". . . if the
Union won the election and we were to bargain with the Union on a contract that
we did not have to work overtime, we did not have to do some of the other things
that we had been doing unless the Company agreed to it." This was in response to
Tobbler's inquiry to him as to whether the Company would continue to work over-
time if the Union won the election. Williams also testified that Southwood also
asked him the same question and he gave Southwood the same answer as he had
given Tobbler. In his conversation with Southwood, according to Williams' further
testimony, he asked Southwood how long he had worked for the Company and if
he was familiar with its long-standing practice of placing men on "fill-in work" when
it rained or when their regular duties were slack. He went on to point out to
Southwood that the Company planned to continue the practice which it had found
to be a good one, and was going to continue it "until something came up that would
make (it) change the policy."
In my opinion these two statements by Williams carry with them their own in-
dictment. The first one even if standing alone and made exactly as he testified I
believe would "exhibit the coercive and promissory thrust forbidden by the Act."
Barney's Supercenter, Inc., 128 NLRB 1325. The implied threat here to discontinue
overtime and other favorable practices if the Union came in would be obvious.
The second statement would also be similarly coercive if standing alone. Read or
heard together they augment each other and make what is a clear implication even
clearer. But I do not make my finding on this basis as I am of the opinion that
what Williams told these two employees was more in accord with their testimony
than his and I so find. In reaching this conclusion I note that there is a fundamental
inconsistency between what Williams would have' me believe he was trying to convey
to Southwood about the Company not having to continue certain practices and his
assurance in the next breath that the Company would continue them. Either he
wanted to convey one message or the other. He impressed me as being too intelli-
gent to dissipate his argument with such a basic, fallacy. Accordingly, I am unable
to credit him. What the message was and that there was no doubt in his mind that
it was getting across to the employees would appear from his testimony that "for
some reason" the laborers in the shipping department felt "that the Company was
going to cut out overtime and a lot of other things" because of the union campaign.
In view of the foregoing and considering those matters that stand undenied in
the record I believe and credit that part of the General Counsel's evidence as set
forth above which I have not heretofore made findings on or otherwise disposed of.
In so ruling I have carefully considered the contentions made in Respondent's brief
as to the relative credibility of the witnesses on both sides. There is no doubt that
there were some contradictions in the testimony of the General Counsel's witnesses
and that some of the General Counsel's evidence was adduced only after witnesses'
13 As it developed from Bozeman 's own testimony,, I find nothing coercive in Pope's
remarks about seniority.
14 This was something Williams had said in a statement taken from him by the Board's
field examiner , and which he admitted on cross-examination.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recollections had been refreshed in one valid manner or another. It was apparent
to me that one or two of those still employed by Respondent were reluctant to testify
against Respondent . In view of this, such testimony as came out adversely to
Respondent 's cause would seem to have a guarantee of veracity.
One other comment . Considering the amount of time and effort Respondent's
officials put into their individual campaigning with the employees it would seem
hardly possible to avoid making some comments that would transgress the restric-
tions of the Act. Moreover, while I believe Respondent may have tried to lend the
impression of intellectual objectivity in making its points and undoubtedly told the
employees to vote as their convictions dictated and even on occasion that how they
voted would not affect their jobs, to have been effective with some of the near illiter-
ate employees would undoubtedly have required a less subtle approach.
In summary, I find that all of the foregoing interrogation by Respondent was
coercive within the meaning of Section 8 (a) (1) of the Act.15 Also violative of that
section were:
1. Pope's comment to Bozeman that if the Union came in he was afraid a bunch
of people would get hurt.
2. Higdon's threat of job loss to Brunson if he voted for the Union.
3. Mike Williams' statement to Dobbs about improvements in employee relations
or employee treatment if the Company won the election.
4. Mike Williams' statement to Tobbler that if they kept the Union out the
employees would have better jobs and that if the Union came in there would be no
more overtime or made-work to cover rain or slack periods.
5. Johnson's statement to Southwood that if the Union came in it would take
bread out of his mouth and there would be no more "piddling around time."
6. Pat Williams' statement to Bozeman that if they got the Union "licked" there
would be some changes in the shop on things like the discharge of one Rucks which
the employees felt was badly handled by management.
7. Pope's statement to Bozeman that he was sorry to hear he was mixed up with
the Union because Respondent "kind of had plans for his future."
The complaint alleges that "on or about January 29, 1960, and on subsequent
dates (the exact dates being unknown), through its president, E. M. Pope and
production manager, H. B. Broome, initiated, sponsored and encouraged employees
to withdraw from the Union."
The evidence shows that on January 29 the Company wrote all of its employees
as follows:
ALL MOORE DRY KILN COMPANY EMPLOYEES
Re: Getting back Union Cards
that were signed.
We have been asked this question:
How can I get back the card I signed in the Union Organizing Campaign?
This is a good question-you have every legal right to get back your card
if you wish.
The chances are you won't get it back, but to make it void so it won't count,
you can do the following:
Write a letter addressed to "National Labor Relations Board-Ross
Building-112 East Cass Street Tampa, Florida."
Make four copies of this letter. Mail the original letter to the Board
in Tampa and keep one copy for your records. You can also, if you wish,
mail one copy to District #50 United Mine Workers-212 Professional
Building-Macon, Georgia, and also, if you wish, send one copy to Moore
Dry Kiln Company, Jacksonville, Florida.
If it is your desire to get your card back and withdraw your authorization,
tell them in this letter that you signed a card and now want it back, but in any
event, want it to be considered void.
Doing this, is within your rights-this is a decision for you alone to make.
Sincerely,
(S) E. M. POPE, President.
15 It is clear that considered in the context of other coercive conduct, such interroga-
tion violates Section 8(a) (1) of the Act. Blue Flash Expres8, Inc., 109 NLRB 591 ;
American Furniture Company, Inc, 118 NLRB 1139. Here, even if not coupled with vari-
ous threats I believe the interrogation and the whole course of Respondent's conduct went
beyond permissible limits. The testimony of Brunson (". . . just . . . talking to . . . get
him off my back . . ."), Southwood (". . . just telling him anything to get him off of
me."), and Bozeman ("... trying to get off the hook . . .") bears this out.
MOORE DRY KILN COMPANY 1265
Regarding the inception of this letter Pope testified that "we had a number of our
employees ask how they could get ,their union cards back and we thought it was only
right that we should inform them of their rights so they could make their own decision
and do what they wished to do." It appears from Production Manager Broome's
testimony that five employees made such an inquiry of him which he passed on to
Pope. The latter said he did not know if they could get their cards back but that he
would "check up and find out." It was on this basis that the January 29 letter was
written and distributed.
Received in evidence was a four-page petition dated February 1, 1960, addressed
to the Board and signed by 42 employees, disavowing any union allegiance and re-
questing that the union cards signed by any of the petitioners "be null and void."
Frank Hurst, an employee called by Respondent, testified that it was he who thought
of and started the petition. When he got it prepared he took it to his work bench
and let it be known it was there and what its purpose was. But after the first after-
noon when he got the first four signatures John Godbolt took it over and Hurst would
thereafter send any inquiring employees about it to Godbolt. The petition was re-
ceived at the Regional Office at 10:20 a.m., February 5. Pope admitted receiving a
photostatic copy of the petition the latter part of February 1960.
Most, if not all, of the General Counsel's employee witnesses, testified credibly
that they never asked anyone how they could withdraw or get their authorization
cards back from the Union.
In its brief, citing the fact that five employees had asked Respondent how they
could get their union cards back, Respondent contends that "there is no way in the
name of reason that one could contend, in the face of this evidence, that Respondent
"initiated" or "sponsored" or "encouraged" employees to withdraw from (the
Union). As to the five employees who asked, I agree. But as to the remainder of
Respondent's employees I disagree. Accordingly, I find that in issuing its January
29 letter to employees who had not sought such advice Respondent encouraged em-
ployees to withdraw from the Union and further interfered with the rights of its
employees in violation of Section 8 (a) (1) of the Act. Mrs. Owen E. Brennan, Sr.,
et al., d/b/a Brennan's French Restaurant, 129 NLRB 52.
In making these findings I am cognizant of (1) a meeting Respondent had with its
supervisors after the representation petition was filed wherein the supervisors were
instructed by counsel as to how to conduct themselves in the campaign and (2) the
written instructions on the same subject issued by Respondent on February 2, 1960.
The Objection to the Election
The foregoing findings and conclusions amply support the Union's objection No. 2
to the election Accordingly it is recommended that the election be set aside and a
new election ordered.
The Alleged Discrimination
As indicated, 19 employees were terminated or laid off on April 8, 1960. The
General Counsel contends that this action was for the purpose of discouraging or
defeating the union campaign of its employees Respondent contends that it was
caused solely by a decrease in, and an expected further curtailment of, its business.
Respondent also defends on the grounds that the General Counsel has failed to prove
knowledge on the part of Respondent of the union activity or membership of the
terminated employees.
While I agree that except for two of the terminated people the General Counsel
has failed to show specifically such knowledge,16 I conclude and find that this failure
is not a fatal defect in the General Counsel's case 17 and further find, on the facts
m Brunson, who attended every union meeting including the one at which four of
Respondent's supeivisors were present, was interrogated by his foreman, Higdon, about
them all as they occurred Dewitte, Jr, was asked by Broome either how lie got into
the Union or how he got "mixed tip" with it. Respondent inferentially concedes knoiil-
edge of the union activity of these two by its statement in its biief that "the recoid is
clear and uncontioverted that Respondent had no knowledge of the union membership or
activities of seventeen of the nineteen" employees selected for the layoff
17 See drnoldware, Inc , 129 NLRB 22S There the Board held as to a layoff desicned
to thwart the union that where the objective in effecting terniination was illegal it was
immaterial that some of the victims "may not have been union employees or that Respond-
ent had no knowledge of their union membership and activities Discrimination in regard
to hire or tenure of employment of a group of employees. including nonunion employees
of the group or union members not known by the employer to be union members, tends to
62406T-62-vol. 133-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and for the reasons below, that the April " 8- layoff was motivated by Respondent's
desire to defeat the Union in its effort to become the bargaining agent of the employees
and was designed solely to achieve that end.
Respondent contends that it had economic justification for the layoff and that this
proves "that it was not illegally motivated." In my opinion the evidence does not
support Respondent's contentions. As early as December 1959 (prior to the Union's
appearance on the scene), according to Pope's testimony, he met with Mike Williams,
vice president in charge of production, and Broome, production manager, to discuss
the possibility of a layoff. This possibility was engendered by several factors in Pope's
analysis of the economic scene at the time-"lumber mills were slowing down as
evidenced by warehouses filling up; the construction industry was beginning to show
signs of a slowdown as customers reported; and some customers were requesting de-
layed shipments on their orders." Moreover, Respondent's salesmen in the field were
finding it difficult to obtain orders as evidenced by a decrease in Respondent's backlog
of contract orders and the declining trend in contracts entered. According to Pope, "it
is standard practice to plan from two to four months in advance as far as current
activities are concerned."
A second meeting between the same three officials of the Company was held in
February, Pope stated at this time that the unfavorable trend discussed in December
was still in existence and that if improvement was not shown shortly "a decision would
have to be made to lay off employees." Thereafter, in another meeting in the latter
part of March, Pope "announced that a layoff would be executed since the economic
trend had not changed."
The selection of those for layoff was left largely to Production Manager Broome.
According to Respondent, the selection was made by seniority in departments except
for a "few" cases where ability was controlling.18 According to Broome's testimony
he selected those he "thought" could best be laid off "without hurting the overall
picture of the operation."
On the occasion of the layoff Respondent gave the following typewritten statement
to those laid off:
TO------------------------------
Re: Termination of Employment, Day Ending
Due to a lack of work, we find it is necessary to reduce the number of
employees.
As you probably know, it has been our policy for many years, when sufficient
work is not available, to consider along with other factors each employee's
length of service in determining who shall be terminated.
It has been necessary to reduce the work force in your department and you
are among the last hired in your work. -This letter is therefore your notice of
termination as of the date shown above. You will be paid through the full
work week in which you are terminated according to our usual practice. If
you do not immediately find other work you may apply for unemployment
compensation.
At this time, we do not know when work will pick up and we suggest you
secure other employment.
Please indicate below, in writing, if you wish to be notified for re-hiring
within the next six months and give your mailing address. Failure to give us
now and keep us posted of your correct mailing address will indicate you are
not interested in being re-hired. If you have not been reemployed within six
months we will assume that you are permanently located on another job.
, Yours very truly,
MOORS DRY KILN COMPANY.
Dated------------------------------ By----------------------------
-------------------------------------------------------------------
I have been given another copy of this letter and acknowledge receipt of it.
-------------------------------------------
Employee's Signature
-------------------------------------------------------------------
-------------------------------------------------------------------
discourage union membership and activities no less than discrimination against known
union members alone " See also Ellis and Watts Products. Inc, 130 NLRB 1216
18 Of those laid off, all had been hired in 1959, 12 having been hired during the last
5 months of the year. Most if not all were told when hired that the work was temporary.
MOORE DRY KILN COMPANY 1267
A second copy of this letter was mailed to those not heard from in relation to
the first letter. Some of these letters were sent registered mail.
Between April 20 and July 20, Respondent used 11 "casual" laborers, 5 of whom
had been in the layoff.19 Broome's explanation for this was that because of the steel
strike, steel that was supposed to have been coming in during the third and fourth
quarters of 1959 began arriving the latter part of April. This put an unexpected
demand on Respondent's work force which was then busily engaged in getting out
shipments that had been completed the first part of the year but that "customers did
not call for on account of the cold weather in the north "
,On April 27 and 28, Respondent rehired C. J. Hurst and Donald Moad, both
among the April 8 layoffs. Broome's explanation of the need for the rehire was
that he had been in error about the amount of welding that had been available.
On June 10, Respondent wrote the white employees who had been laid off on
April 8 as follows:
We are planning to use during the summer vacation a few high school boys
in the warehouse and storage room the same as we have in past years.
This work is making inventory check of stock room items-straightening out
files and record storage-cleaning and transferring stock room bins and items.
The rate of pay is $1.00 per hour for 40 hours per week.
We do not know if you have secured work since you stopped working for us
in April 1960. If you are not now employed and would be interested in this
temporary summer work please report to us Tuesday morning, June 14th, for
work and we will use as many as possible, giving preference to those with
longest service.
Yours truly,
PRODUCTION MANAGER.
HBBroom/ls
P.S.-If you are now employed elsewhere and do not wish to be considered
for recall, please indicate on bottom of this letter, also use the attached self-
addressed envelope and return to us.
Pursuant to this letter one of the laid-off employees applied for and received some
temporary work. As had been the practice in previous years, three high school boys
also were hired for the same work which ended by August 1.
On June 10, Respondent also wrote the colored employees who had been laid off
on April 8, as follows: 20
We are finding that we will need a few occasional extra part time workers from
time to time. This work is primarily unloading cars of incoming materials on a
day by day basis as needed.
We cannot plan this work ahead and if you are interested we ask you to please
report or check with our warehouse each morning before 8:00 A.M. to see if
any work is available. You will be given preference over others if you are
available.
Yours truly,
PRODUCTION MANAGER.
HBBroom/ls
The evidence further shows that from July 20 to the time of the hearing no more
casual labor was hired. Furthermore from the time of the layoff to the time of the
hearing three employees quit and were not replaced.
Numerous exhibits were received in evidence reflecting various aspects of Re-
spondent's business and were offered by Respondent to support and corroborate
Respondent's contentions. Thus, Respondent points to what occurred in the second
quarter of 1960, when the average of incoming monthly orders less cancellations
dropped from a first quarter figure of $182,000 to $74,000,21 and claims that this
vindicates Respondent's analysis and shows "that Respondent had identified the
adverse climate of the industry and acted intelligently upon the identification of a
recession." In further support of its contention that the Union played no part in the
layoff, Respondent points to the fact that the most active union adherents (Bozeman
19 Some of these casual rehires were the result of Respondent's efforts to notify those
laid off of the availability of some part-time work.
20 Respondent explained that the summer inventory work was not offered to the colored
employees because of its feeling that they were not capable of handling it.
21 The figure for April 1960 showed that cancellations exceeded contracts entered by
$45,000. No orders were canceled prior to April 18, however.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Dobbs) were not laid off, and to Pope's testimony that Respondent would rehire
all of those laid off when work became available.
On its face, Respondent's position seems quite tenable. But an analysis of its
evidence shows its fallaciousness.
As for the "declining trend" in new contracts Pope testified the figures show
that the months of September, October, and November, 1959, showed successive
gains for contracts entered less cancellations 22 Moreover, notwithstanding a slight
drop in the December figure, the fourth quarter for 1959 showed approximately
a 12-percent rise over the third quarter, and this rising trend was continued in the
first quarter of 1960 which showed approximately a 20-percent rise over the fourth
quarter of 1959.23 Moreover, the figures for the first quarter of 1960 show an
approximate gain over the comparable period of 1959 of 25 percent and if only the
total of the first 2 months of 1960 is compared with their counterparts in 1959, the
gain was approximately 28 percent.
As for the decrease in the backlog of unfinished orders Pope testified about, it is
true that the last quarter of 1959 showed a decrease from the third quarter in the
monthly averages of approximately 16 percent. But that this decrease as a trend
continued into February as Pope implied was not so. The average monthly backlog
increased in the first quarter of 1960 over the fourth quarter of 1959 by approxi-
mately 7 percent. Moreover, the February 1960 backlog was some 18 percent
larger than the December 1959 backlog and some 12 percent larger than the average
for the entire fourth quarter of 1959. And when compared with its 1959 counter-
part the first quarter of 1960 shows an approximate increase of 76 percent! Or
if only the average of the first 2 months of both years is compared, the increase in
the 1960 period over the 1959 period is approximately 105 percent! Moreover, the
March 1960 backlog was the highest since September 1959.
Clearly, Respondent's contention that its current business and its trends were
unfavorable is not correct.
Moreover, there is yet another inconsistency in Respondent's position. If Re-
spondent were so vigilant about and sensitive to falling trends, the question arises
why a retrenchment did not occur in October or November 1959. Significantly, the
contracts entered less cancellations figure for the third quarter of 1959 was approxi-
mately 53 percent less than the figure for the second quarter. Moreover, there was
a downward trend in the backlog of contract orders, the total for the third quarter
being somewhat less than the second quarter figure with relatively substantial de-
creases both in August and September.24 Instead of retrenchment, however, between
the middle of September and the end of October Respondent hired nine new
employees!
If Pope, in his testimony that some customers were requesting delayed shipments,
meant to imply that such requests were made because of and reflected bad business
conditions, Broome's explanation that they had to hire casual help in April because
of the press of making shipments held back because of bad weather considerably
neutralizes such an implication.25
As for Pope's other statements about the economic climate in late 1959 or early
1960, there is no corroboration to support his own testimony which was largely
hearsay. No customers, salesmen, or lumber warehousemen testified. In view
of his inaccurate appraisal of his own business figures, I plr ce little reliance on his
other testimony in this area. Thus it appears that on its face and standing alone
23 In the light of Respondent's testimony that its various reports are not prepared until
after the end of the month, I assume that Pope only had the figures through November
when he had his December meeting about a possible layoff. In any event, even though
the December figure for new contracts showed a decline over the previous month one
could hardly describe a 1-month drop out of the last 4 which were otherwise continually
rising as a declining trend
25And if the figures for only January and February 19(30 are compared with the fourth
quarter of 1959, the percentage of average monthly increase was approximately 27 per-
cent In view of the fact that the layoff decision was made before the end of March,
I must assume the likelihood that the full quarter year figures were not yet available In
his testimony Pope admitted as much
u The decrease from July to August was about It percent and the downward trend
continued in September with an additional drop of about fi percent from the August figure
25Another bit of testimony by Broome would seem to raise some doubts about the good
faith of Respondent's position The question is why Broome found it necessary to choose
for layoff those he "thought" could best be laid off "without hurting the overall picture
of the operation " Why should Respondent be hurt when it was letting people go that it
allegedly did not need 9
MOORE DRY KILN COMPANY 1269
Respondent's contention as to the motivation and necessity for a layoff is without
substance.
Now let us examine the matter in the light of the evidence presented by the
General Counsel. Early in January 1960, both in a letter to the employees and by
means of a speech to them, Pope indicated to them how pleased Respondent was
with its 1959 business. It was pointed out that they had been advised the previous
year that Respondent "would go back on a realistic profit sharing basis just as soon
as . . . earnings would justify it," but that at the time it was felt that this "would
take several years." However, since the 1959 profit had been so good it had enabled
Respondent to reduce some of its obligations ahead of schedule making it possible
to accelerate its profit-sharing plan by immediate effectuation. Also at this time,
Respondent announced a general wage increase retroactive to January 1, 1960. These
were hardly the actions of a depressed or retrogressing business that several weeks
before had given rise to so pessimistic an appraisal as to envisage a curtailment of
its labor force.
It may be that the 1959 hires were told the work was only temporary. The fact
is, however, that DeWitte, Jr., hired in August 1959, participated in the Company's
insurance plan and other employee benefits. It may also be that the layoffs were
all in seniority except a "few." Those "few," however, constituted more than 30
percent of those laid off. It may also be that shortly after the layoff Respondent
rehired two of those laid off. The fact is, however, that both of these rehires had
signed the antiunion petition of which Respondent was aware and furthermore, one
of those rehired had been the employee who had started the petition.
Of major significance in this same connection is the further fact that of the 17
who remained in the laid-off status as far as full-time reemployment was concerned
only 1 had signed the antiunion petition. With the objections to the election by
the Union on file and with the employee sentiment as evenly divided up to this point,
it is obvious that an elimination of 16 employees (a majority of whom by demonstra-
ble arithmetic must have been among those who had previously voted for the
Union) would be almost certain to make a substantial reduction in the union support.
Ellis and Watts Products, Inc., 130 NLRB 1216. In my opinion the evidence all
points to such a purpose by Respondent and I so find.
Respondent's many (and almost frantic) requests to the employees to indicate
their desires for reemployment within 6 months and Respondent's offers of casual
or sporadic part-time employment (while appearing to clothe Respondent with a
strictly economic motive in its actions regarding the laid-off people) would not, of
course, qualify any of them to vote in any new election.
The fact that after the layoff three employee quit and were no rehired may possibly
indicate that by the time the summer of 1960 arrived business actually had fallen
off. In view of the circumstances here, if this was the case, it was, I am convinced, a
fortuitous occurrence for Respondent's defense and was not the result of any analysis
by Respondent germane to the layoff. And whether or not in the absence of any
union connection it would have resulted in a layoff is questionable if one is to believe
Respondent's repeated protestations to its employees during the campaign that
Respondent's longstanding policy and practice was to make work for its employees
during slack times.
In view of the foregoing and considering the record as a whole, I am convinced
and find that the April 8 layoff by Respondent was for the purpose of discouraging
union activity and defeating the Union. As such it was discriminatory within the
meaning of Section 8(a)(3) of the Act. Ellis and Watts Products, Inc., supra. In
any event as pointed out in the above case "whether or not the layoff was discrimina-
tory, it was clearly an infringement of employees' rights guaranteed in Section 7 of
the Act and thus violated Section 8(a)(1). The appropriate remedy in either case
wherein a layoff constitutes the unfair labor practice includes reinstatement of the
employees who were the victims of the layoff and their reimbursement for loss of
earnings."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that Respondent discriminated in regard to the hire and tenure
of employment of the 19 employees named herein by laying them off on April 8,
1960, I recommend that Respondent offer those not already rehired immediate and
full reinstatement to their former or substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges , and make all those laid off on
April 8, 1960, whole for any loss of pay they may have suffered by reason of said
discrimination by payment to each a sum of money equal to that which they would
have earned as wages from the date of the discrimination against them to the date of
the offer of reinstatement less their net earnings during such period . Loss of pay shall
be computed and paid in accordance with the formula adopted by the Board in F. W.
Woolworth Company, 90 NLRB 289.
The unfair labor practices committed by Respondent in the instant case are such as
to indicate an attitude of opposition to the purposes of the Act generally . In order,
therefore , to make effective the interdependent guarantees of Section 7 of the Act,
thereby minimizing industrial strife which burden and obstructs commerce, and thus
effectuates the policies of the Act, it will be recommended that Respondent cease
and desist from infringing in any manner upon the rights guaranteed in Section 7 of
the Act.
Having found that in the 2- or 3-week period prior to the election Respondent
promised economic benefits if the Union was defeated, I shall further recommend
that the results of the election be set aside and a new election ordered.
Upon the basis of the foregoing findings of fact , and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. District 50, United Mine Workers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
2. By discriminating against its employees because of their union activities or sym-
pathies 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
the rights guaranteed in Section 7 of the Act, the Respondent has committed 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
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the case , the Trial Examiner recommends that Moore Dry Kiln
Company, its offiecrs, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging its employees from engaging in concerted or union activities for
the purposes of collective bargaining or other mutual aid or protection by discharging
or laying off any of their employees because of their union activties or sympthies, or
in any other manner discriminating in regard to their hire or tenure of employment.
(b) Illegally interrogating its employees about their union activities , threatening
them with economic reprisals or promising them economic benefits in connection
with their right to engage in union or concerted activties , as provided in the Act, and
illegally encouraging them to eschew such activities.
(c) In any other manner interfering with, restraining , or coercing its employees in
the exercise of their right to self-organization , to bargain collectively through repre-
sentatives of their own choosing , or to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection , or to refrain from any or
all such activties , except to the extent that such rights may be affected by an agree-
ment 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 Trial Examiner finds will
effectuate the policies of the Act:
(a) Offer those not already rehired immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority or
other rights and privileges , and make all those laid off on April 8, 1960 , whole in
the manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
MOORE DRY KILN COMPANY 1271
- (c) Post in its plant at Jacksonville , Florida, copies of the notice attached hereto
marked "Appendix." Copies of such notice, to be furnished by the Regional Direc-
tor for the Twelfth Region, shall, after being duly signed by its authorized repre-
sentative , be posted by Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter , in conspicuous places, including all
places where notices to its employees are customarily posted. Reasonable steps shall
be taken by Respondent Employer to insure that such notices are not altered , defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, Tampa, Florida, in
writing, within 20 days from receipt thereof what steps the Respondent has taken to
comply with the foregoing recommendations . Unless Respondent shall within 20
days, as aforesaid , notify said Regional Director that it will comply therewith, it is
further recommended that the National Labor Relations Board issue an order requir-
ing compliance by Respondent Employer.
It is further recommended that the results of the election in Case No. 12-RC-808
held on March 18, 1960, be set aside and a new election ordered.
It is further recommended that , unless within 20 days from the date of the receipt
of this Intermediate Report, the Respondent notifies said Regional Director , in writ-
ing, that it will comply with the foregoing recommendations, the Board issue an
order requiring the Respondent to take the action aforesaid.
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 discourage membership in District 50, United Mine Workers
of America , or any other labor organization , by discriminating in regard to the
hire or tenure of employment or any term or condition of employment of any
of our employees. - -
WE WILL NOT illegally interrogate our employees , threaten them with eco-
nomic reprisals or promise them economic benefits in connection with their
right to engage in union or concerted activities as provided in the above Act,
or illegally encourage them to refrain from such activities.
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 or-
ganizations , to join the aforesaid labor organization , or any other labor organ-
ization , to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any and all 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.
WE WILL offer those named below immediate and full reinstatement to their
former or substantially similar positions , without prejudice to their seniority
and other rights and privileges and make them whole for any loss of pay suf-
fered as a result of the discrimination against them:
William F . Brunson Melvin Ruttan
William H . Burns Alvin Southwood
Ernest C . DeWitte H. L. Roberson
W. A. Ellison K . R. Henry
Joe Tobbler W. D. Palmer
J. P. Williams R. J. Freeman
James H. Dunlop L . D. Pittman
Wyatt Hopkins George Howard
Bobby David McDuffie
WE WILL also make whole J. C. Hurst and D. D. Moad for any loss of pay
suffered as a result of the discrimination against them.
All our employees are free to become , remain , or refrain from becoming" or re-
maining members of any labor organization , except as that right may be affected by
an agreement requiring membership in a labor organization as a condition of em-
ployment , as authorized in Section 8(a)(3) of the Act. We will not discriminate
in regard to the hire or tenure of employment or any term or condition of em-
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment against any employee because of membership in or activity on behalf of
any labor organization.
MOORS DRY KILN 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.
Trevellyan Oldsmobile Company and International Association
of Machinists (AFL-CIO) and Chauffeurs, Garage and Auto-
motive Employees of San Diego County, Local No. 481, affili-
ated with the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Petitioners.
Cases Nos. 21-RC-6731 and 21-RC-6759. October 20, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board. His rulings made at the
hearing are free from prejudicial error and are affirmed.
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Chairman McCulloch and Members Fanning and Brown].
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within Section 9 (c) (1)
and Section 2 (6) and (1) of the Act.
4. The following employees of the Employer constitute appropriate
units for the purposes of collective bargaining within Section 9(b)
of the Act :
(a) All mechanics, helpers, and apprentices 1 at the San Diego, Cali-
fornia, automobile sales and service agency, excluding service writers,
office clerical employees, watchmen, guards, professional employees,
all other employees, and supervisors 2 as defined in the Act.
1 The Employer maintains that all selling and nonselling employees should comprise one
unit since he operates a retail sales agency . However, we find that the mechanics may
be an appropriate craft unit . Tex Brotherton, Inc., 124 NLRB 1142. Diamond T. Utah,
Inc., 124 NLRB 966.
The new - and used - car mechanics are hereby included in (a) provided they spend more
than 50 percent of their time working as mechanics . Otherwise , they are to be included
within (b). If the parties cannot agree as to their duties, these mechanics may vote in
both elections subject to challenge.
2 The Employer would include McGowan, the shop foreman for mechanics , and the
Petitioner would exclude him as a supervisor as defined in the Act . The testimony re-
133 NLRB No. 111.